Can I Argue Against Breathalyzer Results?

Breathalyzer testMany people regard a breathalyzer as some sort of infallible device. This includes police, those accused of DUI in Pennsylvania, and the general public. They assume that these devices can do no wrong and can never be inaccurate. Even judges, prosecutors and juries will make this assumption—despite the fact that there is a history of rulings, motions and legal actions that have thrown out past breathalyzer results.

In 2016, the Inquirer reported on one such incident. Inaccurate readings from a breathalyzer machine used by the Philadelphia police affected up to 1,000 former Philly DUI cases.

Unfortunately, the breathalyzer’s reputation as a mystical, never-fail device causes some Pennsylvania DUI suspects to neglect their right to defend their case. Rather than pursuing potential actions that could rightfully exclude invalid breathalyzer evidence—or generally help reduce the charges they face—DUI suspects simply give up. They accept a plea bargain or fail to argue against the results of the test itself. Since many jurors will assume that breathalyzer tests are considered scientific fact, DUI suspects’ defenses can fall flat if they don’t go after the device results.

Do not make this mistake. Educate yourself on the nature of breathalyzers and why their evidence could be inadmissible in your court case. These devices have been proven to be inaccurate, time and time again.

Hiring a Pennsylvania DUI lawyer can help you defend against your impaired driving or driving under the influence charges. Your DUI attorney can attempt to get results thrown out for breathalyzers that were used improperly — or that had no business being in use in the first place.

You can learn more about your possible DUI defenses by reading below, and you can also discuss the specifics of your case with an experienced Pennsylvania DUI attorney. Call us now at (215) 940-1200 or contact us online to schedule a free, confidential, no obligation consultation.

Breathalyzer Devices Have to Be Properly Calibrated …But They Frequently Aren’t

Improper calibration is one of the biggest reasons that a breathalyzer test can be inaccurate. A thermostat calibrated to the wrong temperature can think that it’s hotter or colder in your house than it actually is. In the same way, a breathalyzer machine can be way off base when trying to gauge the percentage of alcohol in a breath sample.

Handheld breathalyzer devices, like those used by police officers during roadside stops, work by exposing fuel cell materials to breath vapor. The higher the concentration of ethanol there is in the suspect’s breath, the stronger a charge the fuel cell will generate.

In order for a handheld breathalyzer device to work, they have to be used properly. Neglecting to periodically calibrate the machine can lead to inaccurate readings.

Even a vendor that sells breathalyzers they claim, “are the best, most accurate devices an individual can purchase,” acknowledges that, “breathalyzers must be calibrated periodically and batteries must be replaced in order to maintain accuracy.”

They also note that, “breathalyzers run on special software, just as computers rely on operating systems, which can result in occasional bugs and glitches.” We’ll discuss this more later in this article.

A comprehensive report on breathalyzer inaccuracy by the New York Times found that many officers and police departments routinely failed in their duty to properly calibrate and maintain their machines. As a result, the BAC results they yield can be wildly inconsistent—and often inaccurate.

“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,” write Times reporters Stacy Cowley and Jessica Silver-Greenberg. “Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise.”

In fact, the Times discovered that many police departments were performing calibrations of their more expensive—and supposedly more accurate—police station machines in a completely irresponsible manner. These larger and more sensitive breathalyzers require samples with known BAC concentrations to benchmark the readings and check for errors within the machines.

A Colorado police lab demanded that one lab technician calibrate dozens of devices known as the CMI Intoxilyzer before a hard deadline. Each machine needs around an hour apiece to calibrate properly, so the tech requested help from inexperienced assistants, an intern, and even a sales rep and lawyer who worked for CMI.

The intern testified in a deposition that he had no expertise or experience working on machines of this complexity. Making matters worse, the technician responsible for certifying the machines testified that lab records were fraudulently completed to claim that he had calibrated machines himself when he hadn’t touched them. The lab’s science director also claimed that her digital signature was improperly copied to deceptively claim that she had signed off on the devices as accurate.

Most shocking of all, a police department in Worcester, Mass. had been relying on results from a machine that had been infested with rats!

Because of issues like these, Pennsylvania DUI lawyers will often investigate whether a breathalyzer device was used properly during the process of a traffic stop. They will also check whether the device had been maintained and calibrated on a regular schedule necessary to attest to the device’s accuracy.

Breathalyzer Machines Rely on Software That Can Be Prone to Bugs and Errors

Breathalyzer devices are machines like any other, which means that they can (and do) go on the fritz from time to time. Just like your phone can sometimes open the wrong app or “accidentally” start recording you, breathalyzers can make analysis errors that frequently go unnoticed.

One toxicology lab in Vermont conducted a review of CMI’s Intoxilyzer 8000 in 2005. They found it “unsatisfactory” and reported that it yielded inaccurate results on “almost every test.”

When hackers hired by Dräger tested their Alcotest 9510, they found that the device had calculation errors that could make it round up inaccurately. Additionally, safeguards meant to alert the user to possible errors had been disabled.

Unfortunately, breathalyzer manufacturers are tight-lipped about their devices to an almost unsettling degree. They will not provide devices to the public, nor will they reveal to DUI lawyers how the device’s work in response to information requests.

The uncertain nature of how breathalyzers work—and how to audit their accuracy—led one panel of Florida judges to label their state’s device as a “magic black box” with “significant and continued anomalies.”

Accordingly, your DUI lawyer will investigate whether the device used to analyze your sample has been tested for errors. The device must also have been up-to-date on its software. Ideally, the device will have been certified by a technician who can attest that the device is working properly and has objectively accurate and consistent readings.

Police Officers Have to Have Up-to-Date Certifications Proving They Know How to Use Their Device Properly

officer administering a breathalyzer test to a womanNot just anyone can administer a breathalyzer test. These individuals have to pass a brief training course and obtain certification that proves they know how to use the device, how to capture samples accurately, and how to record and store readings without violating the rules of evidence.

Yet, many police officers have certifications that are out of date, or they may have never been properly certified at all.

Your DUI attorney will investigate the arresting officer’s training and certification status to determine if they were qualified to properly administer the test and capable of obtaining an accurate reading.

Certain Substances and Conditions Can Cause a False Positive

There are plenty of myths about how to beat a breathalyzer test. In a cruel twist of irony, none of these techniques actually work, but there are a number of ways to accidentally set off a false positive.

Certain mouthwashes, medications, and other non-intoxicating substances can set off a false positive because they contain alcohol. If you burp anywhere around the time you are tested, you could be exhaling a concentrated bubble of ethanol that doesn’t accurately represent your current BAC.

Individuals with health conditions, including diabetics, may also have ketones or other naturally occurring substances on their breath. Acetone can sometimes trigger a false positive in older semiconductor-based breath analysis devices. While modern devices are meant to avoid these errors, it’s possible that they can have a small influence on test outcomes.

Outside substances can also affect the test. If you’ve used hand sanitizer or are around certain aerosols, the test’s results could be affected.

Accordingly, your Pennsylvania DUI attorney will determine whether certain factors at the time of your test could have had an undue influence on your BAC results.

Breathalyzers Do Not Actually Measure BAC and Aren’t Supposed to Be Used as Evidence

The kicker to many DUI cases is that a breathalyzer test — especially a roadside one — isn’t meant to measure actual BAC. Instead, they’re preliminary testing devices before an actual blood test can be administered.

Breathalyzers estimate BAC based upon the amount of alcohol vapor being exhaled from your lungs. As blood passes over your lung membranes some alcohol evaporates, giving devices an idea of how concentrated your blood alcohol might be.

A positive readout above 0.08 on a hand-held breathalyzer can be enough to justify an arrest. Then, the officer can test you at the jail, police station, or lab. Since they need a warrant to get a blood test, officers often rely upon implied consent laws (P.S. Title 75 §1547) to get suspects to blow into a supposedly more accurate breathalyzer. These results can provide enough evidence to get a warrant for an actual blood test.

Police officers are expected to use breath test results in combination with the “totality of circumstances” to infer that there is enough evidence to justify charges for DUI.

Yet, breathalyzers have a reputation as infallibly accurate scientific measurement instruments. Officers, prosecutors, juries and defendants will incorrectly assume that readout results are the only evidence needed.

“The tests were never meant to be used that way,” one former owner of a breath-testing device manufacturer told the NY Times.

DUI lawyers in Pennsylvania will often come upon cases where the arresting officer did not follow through with due diligence to confirm that the suspect had an actual BAC above the legal limit. Or, in some cases, the officer will use BAC readouts as the sole justification for probable cause to make an arrest even though the totality of circumstances seem to contradict the breathalyzer results.

When police officers make careless mistakes and assume one breathalyzer test is enough to convict, a DUI attorney in PA can be there to make a strong case that they’re wrong.

Chain of Custody Mistakes and Other Due Process Violations

Another common oversight DUI defendants have is that they assume they have to prove that they weren’t drunk at the time of their arrest. Instead, they can avoid the subject entirely by examining how their arrest occurred and how various aspects of it were handled by the arresting officer and the station that processed them.

For instance, breathalyzer test results have to be stored and handled in a certain way. This is because there are rules about handling evidence, including a required “chain of custody.” When police officers forget to have the proper person sign off on evidence or they store it in conditions that can allow the evidence to be tampered with, that evidence can sometimes be thrown out.

Additionally, the officer or police stations may have made other procedural mistakes. They may have forgotten to read off Miranda rights before the arrest, or they may have had unacceptable conduct in relation to the arrest.

In some Pennsylvania counties, for example, the officer is supposed to detain and observe the suspect for at least 20 minutes before administering the breathalyzer test. This procedure ensures compliance with the device manufacturer’s recommendations for an accurate readout.

Fight Your Breathalyzer Results and DUI Charges in Pennsylvania

Breathalyzers are just a tool. Like all tools, they have to be used properly. They also have to be viewed in the right context. Otherwise, people may assume that a DUI charge is unbeatable when, in reality, the case being made by prosecutors is full of holes.

There is no way of knowing for certain what options you have for a DUI defense at your disposal unless you have your case evaluated by an experienced Pennsylvania DUI Attorney.

Let us do everything we can to come to your defense and attempt to argue against your charges to the extent your case will allow.

We offer free consultations and are available to respond 24/7 to inquiries. Call us now at (215) 940-1200 or contact us online to schedule a free consultation and discuss your options with an experienced Pennsylvania DUI lawyer.