Unique among criminal offenses, a citizen accused of drunk driving faces trial by machine. If the breathalyzer indicates a blood-alcohol concentration of .08% or higher, he will usually be charged with two offenses: driving under the influence of alcohol and driving with a BAC of .08% or higher. Amazingly, he will be presumed by law to be guilty of both offenses (see my earlier post “DUI and the Presumption of Guilt“) and the burden of proof will be shifted to the accused (see “If You Can’t Prove It, Make the Defendant Disprove It“).
Prosecutors continue to assure jurors that these state-of-the-art breathalyzers are highly accurate scientific instruments — so accurate and reliable that they can feel comfortable finding the defendant guilty beyond a reasonable doubt based solely upon the machine.
And yet….Law enforcement agencies are beginning to abandon them in favor of blood tests (see “So If Breathalyzers Are So Accurate…“). Just how accurate and reliable are these “state-of-the-art” breath machines?
Not very, according to internal documents from the State of Virginia’s Department of Forensic Science.
Attorney Robert F. Keefer of Harrisonburg, Virginia, filed a demand under the Freedom of Information Act for records concerning the machine used in that state, the Intoxilyzer 5000 (the most commonly used machine in the country over the past 15 years). Keefer was finally successful in obtaining internal documents from the Department that were submitted in support of an application for funding to replace the breath machines used throughout Virginia with newer models. The following are direct quotes from those documents:
Funding of this request will allow the agency to replace instruments (Intoxilyer 5000 instruments) that are 9-10 years old and for which replacements are not available. These instruments are outdated and the manufacturer is no longer maintaining parts and not capable of fully supporting them since current instruments demonstrate two further generations of technological advancement.
In reponse to the request form’s question, “What are the expected results to be achieved if this request is funded?”, the following response was given:
To replace outdated, unstable and unreliable breath alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.
Unstable and unreliable. But do you think this is what prosecutors in Virginia tell juries? Of course not. They tell them exactly what they always tell them: accurate, reliable, state-of-the-art proof…guilty beyond a reasonable doubt.
And do you think it is just Virginia that uses the Intoxilyzer 5000? It remains one of the most commonly used machines in the country (including by my own home town cops, the Long Beach Police Department).
So how many thousands of innocent American citizens do you think have been wrongly convicted based upon these marvels of science? And how many more will continue to be?
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