If you are accused of DUI or DWI, a reading results in a legal presumption of guilt; if charged with driving with a blood-alcohol content of .08% or higher, the machine is the only evidence of blood-alcohol. In essence, either way you will be facing a "trial by machine".
So how good are these machines? Good enough to constitute "proof beyond a reasonable doubt"? Or are they just "close enough for government work"?
As regular readers know, one of my pet peeves is the unreliability and inaccuracy of breathalyzers (or, more accurately, any of the various breath testing models sold by a handful of manufacturers). See, for example, Breath Alcohol Testing: "State of the Art?, Why Breathalyzers Don't Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.
D.C. Attorney General Drops Drunk Driving Cases
Wash. DC. Feb. 8 — The District's attorney general has dropped dozens of drunken driving cases since Jan. 31 and hundreds of others could be dropped as the police department shuts down its troubled alcohol breath-test program. Problems dating back more than three years with the city's breath analyzers were first revealed in February 2010, when it was discovered the machines' results were inaccurate. Since then, the D.C. medical examiner's office has refused to sign off on the accuracy tests of new analysis machines, officials said.
"The alcohol breath-analysis program? It doesn't exist anymore," said Ilmar Paegle, who discovered problems with the Intoxilyzer 5000s soon after he took over the city's breath-analysis program on Feb. 1, 2010. Paegle's contract ended last week. As he left, he said, the police department pulled off the street the Intoximeter, which replaced the Intoxilyzer last spring. "It's a royal mess," Paegle said.
A spokeswoman for D.C. Attorney General Irvin Nathan said he couldn't be pulled from a meeting to comment Tuesday. Nathan dropped eight more drunken driving cases Tuesday.
City policy requires the medical examiner's office to certify the program, and it has not done so, citing concerns raised by the problems with the previous models, Paegle said. Although officers had been using the Intoximeters, the results were not being included as evidence, according to Paegle and internal police e-mails obtained by The Washington Examiner.
The medical examiner's office declined to comment, citing pending litigation. Dozens of defendants have sued the city after being convicted on potentially faulty breath-test results.
Assistant police Chief Patrick Burke said officers are now taking urine samples to test blood alcohol levels for potential future prosecutions.
Meanwhile, the two police officers who account for a third of the city's 1,400 annual drunken driving arrests have had their trial testimony called into question. They are the subjects of an internal affairs investigation that began after they spoke out about problems with the breath analyzers.
Officers Jose Rodriguez and Andrew Zabavsky learned that the medical examiner hadn't signed off on the program and began mentioning that in their trial testimony last spring, according to an e-mail from Zabavsky to police Chief Cathy Lanier. Later in the spring, the attorney general's office began an investigation into the officers, saying a woman they arrested for driving under the influence in June 2009 had complained the two watched her take a urine test.
In December, the case was turned over to internal affairs.
"On a day-by-day basis, cases are being dismissed because the officers involved are being investigated," said defense lawyer Bryan Brown.
The result, police union chief Kris Baumann said, is "our ability to enforce DUI laws in the District has been crippled".
The breathalyzers involved are the most commonly used across the country. Do you really think only those in Washington D.C. are giving false results?
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