Are Breathalyzers a Violation of Civil Rights?


The use of breathalyzers are becoming increasingly popular among police officers in the United States. In recent years, more and more people are going to jail due to a breathalyzer result. The question is whether or not breathalyzers are even entirely accurate. If they aren’t, can the truly be admissible in court? For example, let’s say a college student of drinking age meets up with a friend for dinner. The student shares a small pitcher of margaritas with her friend over the course of three hours.

When she decides to head home, she is stopped by a DUI checkpoint. The police officer who stops her claims he saw her car swerve into another lane. Unfortunately, the officer can legally lie to her and say he saw her swerving, even if he didn’t. He then administers a breathalyzer after asking how much she had to drink. Being the honest student she is, she tells the officer she had two margaritas. Although her BAC was below the legal limit of .08, she is still arrested for possibly being above the limit. This particular student is attending college on a scholarship and is now facing possible termination of said scholarship after word of her arrest gets out. 

Believe it or not, this exact scenario occurs more often than you might think. Even being arrested for suspected drunk driving can ruin any chances of a perfect record. One faulty breathalyzer test can interfere with future scholarships or other important life events. So why are breathalyzers still a way of testing how intoxicated a person is? According to the Centers for Disease Control, more than 30 percent of vehicle-related deaths occur every year due to drunk drivers. Breathalyzers are routinely administered by police officers to ensure impaired drivers stay off the road. There is, however, a growing concern that the most significant tool utilized to identify drunk drivers is flawed. As a result, breathalyzers could possibly violate a driver’s civil rights. 

The Accuracy of Breathalyzers

As already mentioned, a major issue with breathalyzers is whether or not they are scientifically accurate. Not only is a driver judged based on whether or not they seem intoxicated, a breathalyzer can help determine if a driver is actually too intoxicated. The argument in terms of legality is that people imply consent when they acquire a driver’s license, and submitting to a breathalyzer is a reasonable request. However, people with diabetes tend to have a higher concentration of acetone on their breath, which encourages a false positive for alcohol use. Common household substances can also easily fool breathalyzers.

Lauren Williams explains on ThinkProgress that a study out of the Academy of Emergency Medicine found that alcohol-based hand sanitizer can alter breathalyzer results. Seventy-five participants of this study used hand sanitizer, which produced false positive breathalyzer readings. Additionally, the more hand sanitizer was used, as well as not allowing it to dry completely, created larger discrepancies with even higher false positives.

Williams also explains that another issue is how some states administer the breathalyzer test: “Depending on the driver’s behavior and results of the roadside test, which aren’t admissible in court, police can arrest and search the car,” she reports. “In 2011, the Metropolitan Police Department in Washington, D.C., suspended its breathalyzer program after an investigation found the machines used gave inaccurate results. From 2008 to 2010, 400 drivers were convicted of driving under intoxication based on the faulty machines. Half of those who were convicted served jail time. The city brought back breathalyzers in 2012 with new safeguards to make sure the machines are tested properly.”

The Issue of Implied Consent

In the majority of cases, police do give drivers an option, depending on a state law called implied consent. But some states, like Missouri and North Dakota, punish drivers who refuse to take alcohol tests. Drivers can either take the test or risk the same jail time as a DUI conviction, suspension of their license and/or a major fine. According to the NHTSA, 22 percent of suspected drunk drivers refused breath tests in 2005.

Since then, refusal rates have dropped in 11 states and increased in 12 others, with refusals averaging between 19 and 25 percent. States such as Florida and New Hampshire had the highest rates of 82 and 72 percent, respectively. North Dakota’s Supreme Court, Williams reminds us, recently dismissed a case that could have made it unconstitutional to charge drivers for refusing to take breathalyzer tests, potentially reducing the consequences of a false DUI arrest.

Is the Legal Limit a Concrete Number?

Breath tests are used to assess whether a driver has too much alcohol in his or her system, but as we know, that level varies from state to state. States now all use a .08 percent blood alcohol content reading as the legal intoxication limit, but there have been cases where drivers are arrested for blowing much lower than the legal limit. There is even a push to lower the limit to .05, a number causing much controversy.

This is an issue in itself regarding civil rights because it essentially suggests people not drink while they are out. Fifty to 75 percent of convicted drunk drivers, however, decide to drive again even after their license has been suspended, cites Mothers Against Drunk Driving (MADD). It is also expressed that drivers have been intoxicated behind the wheel at least 80 times before they are arrested for the first time. This could be fuel for a lower legal limit. The push for this new limit is still in its infancy, of course, so there is no need to follow this “new” rule right now.

These are simply a few issues that have risen among the infringement of drivers’ civil rights caused by breathalyzers. At The Law Offices of Steven E. Kellis, we are dedicated to assisting you with protecting your civil rights at all times. If you are given a breathalyzer and are arrested as a result of being over the limit, contact our experienced PA DUI lawyers for assistance.