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New York Times investigation finds OWI breath tests unreliable

Each year in the United States, about a million people are pulled over on suspicion of drunk driving. In virtually all of those cases, the driver is asked to blow into a breathalyzer-style machine that estimates their blood-alcohol content. If it's above a certain level, typically 0.08%, the driver is arrested and brought to the precinct for additional testing.

The preliminary breath tests drivers perform on the roadside are typically inadmissible as evidence. They are, however, used to support probable cause to arrest the driver and subject them to a test that will be admissible in court. Therefore, it's extremely important for the preliminary breathalyzer test to be accurate. It's even more important that the breath machines located in police stations be accurate, as those results are admissible in court. 

In a blockbuster report, the New York Times recently examined police procedures and breath testing machines in jurisdictions across the U.S. In the report, "These Machines Can Put You in Jail. Don't Trust Them," the Times reveals major problems with the operation and use of these machines.

Tens of thousands of OWI cases under review

Defense attorneys around the country have long argued that breathalyzer machines (including the Intoximeter we use in Wisconsin) are prone to error. For one thing, the machines must be carefully set up and calibrated against proven samples of various alcohol concentrations, and the Times found that this doesn't always happen.

Another problem is that the machines require ongoing maintenance calibration or they won't be accurate. The Times also found that this maintenance is sometimes skipped or performed incorrectly.

The Times found instances of misconduct at the labs that set up or maintain the machines. For example, a combination of human error and misconduct has led to almost 29,000 OWI test results being found inaccurate in Massachusetts. Defense attorneys have been notified and all of those cases are now open for review.

In New Jersey, over 13,000 people were convicted of drunk driving based on breath tests that had never been set up properly and gave exaggerated readings. All of those convictions are being reviewed, as well.

Beyond the setup and calibration errors, there is another problem with using breath tests as evidence. Defense attorneys around the U.S. have long sought to examine the machines and the computer code they use in order to ensure that the machines actually work when set up and maintained correctly. But the manufacturers have fought at every turn to preserve their trade secrets, even at the expense of people's freedom.

The report is a fascinating read, and it demonstrates why you should never try to resolve a drunk driving case without an experienced lawyer to defend your rights.

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