Roadside Breath Tests Are Just As Unreliable As Field Drug Tests

from the magic-8-ball-says... dept

Portable alcohol testing equipment (a.k.a. breathalyzers) have been called "magic black boxes" and "extremely questionable" by judges. And yet, they're still used almost everywhere by almost every law enforcement agency. They're shiny and sleek and have knobs and buttons and digital readouts, so they're not as immediately sketchy as the $2 drug-testing labs cops use to turn donut crumbs into methamphetamines. But they're almost as unreliable as field drug tests.

Even when the equipment works right, it can still be wrong. But it so very rarely works right. Cops buy the equipment, then do almost nothing in terms of periodic testing or maintenance. A new report from the New York Times shows this equipment should probably never be trusted to deliver proof of someone's intoxication. And the failure begins with the agencies using them.

The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.

There are also problems with the machines themselves, even when they've been properly maintained. And the problems aren't limited to single manufacturer. Dräger, the company that owns the name "Breathalyzer," produced a machine that experts said with "littered with thousands of programming errors." This finding was made during a rare examination of breath-testing equipment by defense attorneys granted by the New Jersey Supreme Court. Those findings resulted in zero lost law enforcement customers for Dräger.

CMI's breath tester fared no better when examined by toxicology lab experts. CMI's Intoxilyzer gave inaccurate results on "almost every test," according to the report. This didn't stop multiple law enforcement agencies from purchasing CMI's tech, even when a Florida court had this to say about the Intoxilyzer.

The Intoxilyzer 8000 is a magic black box assisting the prosecution in convicting citizens of DUI. A defendant is required to blow into the box. The defense has shown significant and continued anomalies in the operation of the Intoxilyzer 8000’s operation. The prosecution argues most of the tests do not show anomalies. In fact, a high percentage of the tests may show no anomalous operation. That the Intoxilyzer 8000 mostly works is an insufficient response when a citizen’s liberty is at risk.

In the state of Washington, state police spent $1 million on Dräger breath testers to replace aging machines. Rather than roll this out in a controlled fashion with proper testing, state officials opted to bypass outside testing of the software to speed up deployment to police officers. Six years after this speedy rollout, the device's reliability was called into question in court. The court allowed defense lawyers to review the software. The result of this testing was never made public… at least not officially. The experts who reviewed Dräger's equipment had this to say about it:

The report said the Alcotest 9510 was “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” It described a calculation error that Mr. Walker and Mr. Momot believed could round up some results. And it found that certain safeguards had been disabled. Among them: Washington’s machines weren’t measuring drivers’ breath temperatures. Breath samples that are above 93.2 degrees — as most are — can trigger inaccurately high results.

Dräger sent the researchers a cease-and-desist order, forbidding them from discussing their findings with anyone and demanding they destroy all copies of their report. Unfortunately for the company, the preliminary report had already been distributed to other defense lawyers and made its way to a number of websites.

The rush to deploy equipment wasn't just a problem in Washington. The same thing happened in Colorado, but the rollout was even more haphazard and borderline illegal. There weren't enough techs available to set up the purchased equipment, so the manufacturer (CMI) sent a salesperson and one of its lawyers to help with the initial calibration and certification. Only one actual lab supervisor was involved. The rest of the workforce was composed of assistants and interns. At best, one person was qualified to do this job. Since this seemed likely to pose a problem down the road if the equipment or readings were challenged in court, the state lab used an extremely-questionable workaround.

[T]he lab’s former science director said in a sworn affidavit that her digital signature had been used without her knowledge on documents certifying that the Intoxilyzers were reliable. The lab kept using her signature after she left for another job.

In Washington, DC, faulty equipment wasn't taken out of service by the person overseeing the program. Instead, the person meant to ensure the equipment was working properly was making everything worse when not acting as a freelance chemist.

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. In addition, Mr. Paegle found, the chemicals the department was using to set up the machines were so old that they had lost their potency — and, in some cases, Mr. King had brewed his own chemical solutions. (Mr. King still works for the Metropolitan Police Department. A department spokeswoman said he was unavailable for comment.)

Once the courts were informed, 350 convictions were tossed. The damage here was relatively minimal. In Massachusetts -- where crime lab misconduct is an everyday occurrence -- 36,000 tests were ruled inadmissible. In New Jersey, 42,000 cases were affected by breath test equipment that had never been set up properly.

Very few corrective measures have been implemented by law enforcement agencies. The fixes that are being made have almost all been the result of court orders. The unreliability of roadside breath tests have led several courts to reject pleas or prosecutions based solely on tests performed by officers during traffic stops. But none of this seems to have had an effect on law enforcement agencies who continue to purchase unreliable equipment and deploy it with proper safeguards or testing.

Breathalyzers are field tests in more than one sense of the word. Drivers are merely lab rats who face the possibility of losing their freedom, their licenses, and possibly their vehicles because a "magic black box" told a cop the driver was under the influence.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: accuracy, breathalyzers, dui, evidence, police, roadside breath tests, testing