When a DUI attorney defends a client charged with drunk driving, the first thing a good lawyer will do is try to find a reason to get the charges dismissed.
Pixabay Did the arresting officer make a mistake? Was there an underlying medical condition which led to the defendant appearing drunk? Was there an inaccurate measurement of the alcohol level? While some people might scoff at these attempts as those of a sleazy lawyer trying to game the system, sometimes they actually do have merit. This story out of Massachusetts is an example of one of those times. This situation arose after Massachusetts dui attorneys across the state called foul at some of the raw deals their clients had been getting.
Here’s more from WCVB: District Court Judge Robert Brennan has ruled that thousands of Breathalyzer tests done by those machines can’t be used as evidence because the machines were being improperly maintained by the state. “Every breath test case in the commonwealth of Massachusetts has been stayed pending this outcome,” said Jay Milligan, one of the defense lawyers representing hundreds of drunken-driving defendants in the consolidated case challenging the technology and results.
Wikimedia Commons The Breathalyzer machine in question is Drager’s Alcotest 9510, which the state used approximately $2.3 million in grant funding to purchase in 2011. Drager representatives have been testing the Breathalyzers and discovered that the settings were incorrect in all but two of the 392 examined. “If you have a result that’s not reliable and it’s above a .08 (the legal limit) it may be enough to convict you of a crime that perhaps you’re not guilty of,” Milligan said. Milligan and other drunk driving lawyers like him are 100% correct in not only questioning the machines, but the manner in which they are maintained, calibrated and used, as many different variables contribute to the accuracy of the reading.
Flickr For example, the machines estimate the amount of alcohol in the breath, but are unable to determine if it’s alcohol from the mouth, stomach, or esophagus (not an indication of intoxication), or alcohol from the lungs which is released during respiration and is an indicator of drunkedness. Alcohol may be present in the mouth or esophagus, for example, from belching. Because of this, police are supposed to observe the suspect for 15 to 20 minutes to see if mouth alcohol may be present that could skew the Breathalyzer results. Another contributing factor are mouthwashes or even breath sprays. In one experiment, a scientist tested subjects who had just used Binaca breath spray. He then took a breathalyzer test and got reading of .81% – ten times the legal limit! The tests did not return to normal until after almost 20 minutes had passed.
Pixabay Breathalyzer machines may also return different readings depending on the temperature of the atmosphere, subject, and temperature of the Breathalyzer itself. Again from WCVB: Brennan found that, overall, the Drager machines produce scientifically reliable results, but that the state’s office of alcohol testing, which calibrates and certifies the machines, did not have proper procedures in place. As a result, thousands of Breathalyzer tests done on machines calibrated and inspected between June 2012 and Sept. 14, 2014, produced unreliable results. “So you may have a reliable machine, but if they’re not being reliably maintained. Well, that’s ultimately going to affect the results of any subject breath test,” Milligan said H/T Wikipedia