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Investigation reveals the unreliability of breath tests

Judges in New Jersey and Massachusetts dismissed more than 30,000 drunk driving cases in just 12 months because of unreliable breath tests according to New York Times reporters. The newspaper investigated the use of breath-testing devices by police officers, and they claim to have discovered widespread human error and lax official oversight. The report reveals that some breath test devices produced blood alcohol concentration readings that were 40% higher than they should have been. The newspaper published its findings on Nov. 3.

During the course of their investigation, New York Times reporters interviewed more than 100 attorneys, scientists, executives and police officers and scrutinized thousands of court transcripts, emails, corporate records and other documents. What they discovered suggests that the breath-testing equipment law enforcement uses use to measure blood alcohol concentrations is often defective, poorly maintained or improperly calibrated. One police department even tampered with a breath-testing machine by drilling a hole to prevent low BAC readings according to the report.

The report points out that criminal charges are dismissed when the evidence supporting them is revealed to be unreliable or compromised, which does not necessarily mean that the defendant is innocent. This is why the results of the New York Times investigation are likely to be as worrying to law enforcement officials as they are to civil rights groups.

Criminal defense attorneys will likely find the results of the New York Times investigation unsurprising. Experienced attorneys generally check police reports and breath-testing equipment records carefully in drunk driving cases, and they may seek to have DWI charges dismissed when these efforts reveal that strict testing and maintenance protocols could have been ignored. Attorneys could also challenge toxicology evidence when their clients suffer from one of the many medical conditions that can influence breath tests.

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