Breathalyzer Tests Might Send Thousands of Not-Drunk Drivers to Jail Every Year

The breathalyzer has long been a standard-issue tool in the police arsenal against drunk driving. The machines are supposed to take the guesswork out of sobriety tests, giving a precise and scientific measurement of whether or not someone has had too much alcohol to get behind the wheel. And when police departments properly maintain that equipment, that’s usually what they deliver.

Unfortunately, there’s no guarantee that any given police department is using reliable equipment. As The New York Times reports, in cities across the country, police departments have poor maintenance standards and often lack expertise in how to keep the machines up. Some departments use stale or even homemade chemical solutions that don’t produce accurate results. The most extreme cases produce readings that are as much as 40 percent too high. One department in Massachusetts even used a machine that, fantastically, had rats nesting in it. In the past year, judges in New Jersey and Massachusetts threw out 30,000 breath tests due to human error or lax government standards.

One account out of Washington, D.C., is emblematic of how departments are struggling to reassess these shortcomings and correct them. Per The New York Times:

When Ilmar Paegle was hired to run the breath-testing program for the Metropolitan Police Department in Washington, D.C., his first order of business was to test its Intoxilyzers. Mr. Paegle, a retired United States Park Police officer, was stunned: Every machine was generating results that were 20 percent to 40 percent too high. That discovery, in 2010, most likely meant that years of faulty tests had convicted innocent drivers. Mr. Paegle’s predecessor, Kelvin King, who oversaw the program for 14 years, had routinely entered incorrect data that miscalibrated the machines, according to an affidavit by Mr. Paegle and a lawsuit brought by convicted drivers.

Paegle also found that King had been brewing his own chemical solutions for the department’s breathalyzers. And, shockingly, King is still employed by Washington, D.C.’s, Metropolitan Police Department.

Despite Paegle’s concerns that nearly a decade’s worth of test results were tainted, the attorney general only agreed to acknowledge problems in cases over the previous 18 months. The AG’s office decided that 350 people had been convicted based on test results that skewed way too high and notified the lawyers in those cases. However, another 700 people had been convicted in that same timeframe whose cases the attorney general decided didn’t rely entirely on the breathalyzer results. And the majority of those cases ended in guilty pleas by the defendants, who believed that prosecutors had ironclad scientific evidence backing them up.

It’s not just poor maintenance of breathalyzers either. As CBS News reported in 2018, some Washington state defense lawyers have long suspected that the company providing breathalyzers to the state’s police, the German medical technology company Draeger, relied on faulty source code. One lawyer, Jason Lantz, had a software engineer and a security researcher examine the source code, and the two experts found in a preliminary report that the software had flaws that could produce inaccurate results. Draeger threatened to sue, claiming that the report violated a protective order the experts agreed to, and the research was abandoned.

In recent years, police forensic techniques that were once thought ironclad have turned out to be error-prone and subjective, like blood-spatter analysis, or outright bunk, like bite-mark evidence. In the case of breath tests for blood-alcohol content, even if the science were sound, the actual execution could be faulty, leading to thousands of wrongful arrests and convictions every year.

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