Is a Breathalyzer Usually Right?

Absolutely not. If anything, a breathalyzer is usually wrong. In 2023, a Massachusetts judge threw out some 23,000 breathalyzer results because the devices weren’t properly calibrated. Disturbingly, according to evidence represented in the case, officials knew about the problem but did nothing to address it. Improper calibration may be the most common breathalyzer flaw, but it’s only one flaw. More on that below.

Improper calibration is only one possible flaw, and a defective test result is only one possible defense in a DUI case. Procedural defenses, such as an illegal stop or an illegal demand to provide a test result, are also available in these cases. Because so many defenses are available, a Leesburg criminal defense lawyer usually resolves DUI and other criminal matters on favorable terms. These favorable terms could be a plea to a lesser-included offense, a not-guilty verdict at trial, or a complete dismissal of charges.

Scientific Flaws

For all its bells and whistles, there is very little scientific evidence in support of breathalyzer reliability.

For starters, this gadget uses ancient technology. The modern breathalyzer is a compact version of the 1920s Drunk-O-Meter. Both devices use breath alcohol levels to estimate blood alcohol levels. A number of factors make the breath alcohol to blood alcohol conversion uncertain, at best.

Mouth alcohol levels are a good example. If the subject belches, vomits, or burps prior to a breathalyzer test, alcohol particles from the stomach flood into the mouth. The unusually high mouth alcohol level skews breathalyzer results.

This flaw is so serious that Virginia law mandates a fifteen-minute observation period prior to a breathalyzer test. But courts don’t strictly enforce this provision. As a result, the state usually cannot prove, beyond any reasonable doubt, that the defendant did not vomit, burp, or belch before the test.

Other parts of Virginia’s DUI law better address certain breathalyzer flaws. For example, Section 18.2-266 allows prosecutors to bypass the breath-to-blood conversion in some cases.

But this legal shortcut, if available at all, does not address some other breathalyzer issues. Particle miscalculation is a good example.

Smokers, diabetics, and some other people have abnormally high ketone levels. Many breathalyzers register these particles as ethanol. Therefore, these individuals cannot pass breathalyzer tests drunk or sober.

Legal Flaws

We mentioned some breathalyzer test legal issues above. Officers must have probable cause to demand a chemical sample. Normally, poor performance on the one-leg-stand and other field sobriety tests provides the necessary evidence. But if the defendant refused to perform these tests or officers skipped them, this vital evidence is unavailable.

If a judge rules the officer lacked probable cause, the test result is inadmissible as a matter of law because it’s fruit from a poisonous tree.

Authentication issues often plague breathalyzer results as well. Typically, prosecutors use police-trained breathalyzer techs to authenticate these results. These individuals learned everything they know about breathalyzers, which isn’t much, at police-sponsored seminars.

Their shaky reliability gives a Leesburg criminal defense lawyer an opportunity. Frequently, a lawyer partners with a degreed chemist who’s much more authoritative and picks apart the breathalyzer from a scientific and technical standpoint.

Connect With a Tough-Minded Loudoun County Lawyer

There’s a big difference between an arrest and a conviction in criminal law. For a confidential consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Virtual, home, and jail visits are available.

Source:

wbur.org/news/2023/04/27/massachusetts-breathalyzer-court-ruling-newsletter