Breath Test Devices Manipulated To Show Higher BAC Levels.
This past Summer the BC government lowered the breath alcohol limit and increased penalties to be imposed on the roadside by police officer’s. Not surprisingly it is now discovered that in the absence of checks and balances to their unfettered roadside police power, the device employed by the officers provide false readings- falsely high readings.
Lawyers Claim Faulty Use Of Breathalyzer
BY KIM WESTAD, POSTMEDIA NEWS MARCH 4, 2011
A class-action lawsuit challenging impaired driving penalties given out under new drunk driving legislation was filed Thursday in Vancouver.
The lawsuit says that, between Sept. 20 and Nov. 19, police officers throughout the province were negligent in their use of the roadside breathalyzer device, which determines a driver’s blood-alcohol level.
Legislation came into effect Sept. 20 that penalizes drivers whose bloodalcohol concentration is between .05 and .08. The level is determined by a roadside breathalyzer, which indicates “warn” if a person’s blood-alcohol level is between those numbers.
The lawsuit alleges that until Nov. 19 police used improperly programmed breathalyzers to determine the reading, which resulted in drivers being penalized when their blood-alcohol levels were below .05, said Michael Thomas, one of the lawyers who filed the lawsuit.
On Nov. 19, Victoria police Chief Jamie Graham, as chairman of the B.C. Association of Chiefs of Police traffic safety committee, recalled 2,200 roadside breathalyzers after RCMP lab tests found a margin of error in the devices. The RCMP found the units could indicate a reading over .05 when the driver was actually under it.
The units were re-set so that a “warn” reading is obtained if the driver blows .06, recognizing the potential machine error.
“The way the legislation is drafted, the public has to rely upon proper enforcement. Our allegation is that that wasn’t done in this time period,” Thomas said.
Police either improperly programmed the devices or failed to detect that they weren’t programmed accurately, the lawsuit alleges. An estimated 170 people a week faced licence suspensions during the period, with penalties ranging from $600 to $4,060.
For a driver with one “warn” reading in the past five years, the minimum penalty is an immediate loss of licence for three days, a $200 penalty and a $250 licence reinstatement fee -and the likely loss of one’s vehicle for the three days, plus towing and storage fees. For those with more than one reading above the legal limit, the penalties escalate.
In a class-action suit, one person sues on behalf of all the people who have similarly suffered.
The lawsuit has to go to B.C. Supreme Court to be classified as a class-action suit before proceeding. That will likely happen within three months, Thomas said.
He will ask for repayment of costs incurred by people who were improperly penalized.
This week, Solicitor-General Rich Coleman said the province is considering allowing drivers to appeal roadside penalties for impaired driving offences.
That would make no difference to the lawsuit, Thomas said.
On the heels of this lawsuit, the BC government announced that there will now be an appeal process for a driver who wishes to contest this roadside suspension, but the appeal may be too little, too late.
Here in Washington, breath testing is subjected to numerous and rigorous challenges by defense attorneys such as myself. These challenges routinely target the claimed accuracy of testing in a DUI prosecution. These challenges are important due to the fact that what hangs in the balance is not only the potential loss of a drivers license, but most importantly freedom vs. incarceration.
It is well known, and established by law here in Washington that the same handheld devices described above, used by law enforcement here, are not reliable proof of anything other than establishing that a person has consumed alcohol. Administration of these tests and the readings provided are only admissible in a hearing to challenge the lawfulness of a driver’s DUI arrest. They are not admissible in a trial due to their unreliability. This is set forth in Washington Administrative Code (WAC) 448-15. The devices use “Fuel Cell” technology and this type of technology will provide false positives as a result of cold weather conditions, recently consumed pizza, and dozens of other factors.
The more advanced technology used utilizes “Infrared” testing. The basic explanation is that light passes through a small sample of air blown into the machine by an arrested person. While this technology is better, it is far from perfect and currently it is behind the “scientifically reliable curve.” As a result, Washington has cleared the way for a new generation of breath testing machine, and has purchased about half of the units needed. While this leap into the current breath testing generation is admirable, i cant help but wonder why the units purchased simply sit in storage rather than be deployed immediately? Perhaps it impeaches the accuracy and reliability of the current machine in use that has been around since the last century (1987).
A DUI charge is full of complex evidence that only the most experienced DUI lawyer can demystify and expose its limitations and “secrets.” As a result whether you are over .02 (Minor DUI), .04 (CDL DUI), or .08 (DUI), or if you are under the legal .08 limit, the charge is not to be taken lightly nor is it for the inexperienced. A successful outcome requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com Email:jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
Are DUI Breath Tests Solid Science, Or Just “Good Enough For Government Work?”
Last Friday the Bellingham Herald ran the following headline and story: Calibration error puts DUI tests across Alaska in doubt. The article written by James Halpin originated from the Anchorage Daily News and states that “Nearly 2,500 breath-alcohol tests conducted in drunken-driving cases across the state over a period of nearly four years used equipment with flawed quality control standards. As a result defense attorneys say the flawed practice calls into question the accuracy of the test. State officials acknowledge the error but say it did not affect the breath-alcohol level DUI suspects blew, only the quality-control checks that accompany every test.
Alaska State crime lab is not alone in this all too common habit of having a flawed quality control system, as they are the most recent state to have their flawed processes exposed. In June 2010, in Washington DC there were at least 400 DUI convictions that were based upon the machines being improperly adjusted by city police. According to the D.C. Attorney General, the District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was. To put this in perspective that means a breath test of .07 is reported as a .084, thereby transforming legal behavior into illegal behavior. Or moving the result over the .15 limit where enhanced DUI penalty and punishment occurs. In July 2010 another lab was exposed in NC Crime Lab Buried Blood Evidence Memo.
In defense of their substandard work, lab technicians, employees, and managers, all have defended their work product by saying the same thing “it does not affect the results,” or it “does not affect the results enough to worry about.” However in Washington State in 2008, when these types of problems were initially identified, they were also said to be “minor and insignificant,” but the Court found otherwise and ordered all tests suppressed- an extraordinary remedy.
Throughout the 2008 hearings this claim of insignificance was not only the first explanation offered but amid mounting evidence to the contrary it became the lab mantra. After several days of testimony from lab personnel, WSP Breath test consultants, and Scientist from the UW, it was clear that problems were far from minor: improperly mixed solutions, flawed software issues, and employees vouching for the work of others with no such knowledge of the work or the quality, causing breathalyzers to function incorrectly and give false BAC readings.
Fortunately of for those accused of DUI based upon breath test evidence that was flawed, in this manner the Court was neither fooled by the mantra, nor forgiving. The 3 judges presiding unanimously slammed the lab’s performance in a 29-page report and said that judges or juries could not rely on the accuracy of breath test evidence found that the work product was not defensible due to a “culture of compromise” and a “multiplicity of errors” at the lab. In the courts final few pages of the lengthy ruling it was held that the lab was found to demonstrate “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in processing of solutions used to calibrate breath-testing equipment. Consequently, the court suppressed more than 18,000 breath tests at that time and the suppression order is ongoing until fixed.
The ruling required the Lab to remedy these deficiencies and when they had done so, the court will reconvene and address the breath test admissibility once again. Apparently the significance of this WSP Tox Lab fiasco was not noticed by other crime labs as evidenced by the recent “minor” problems in Alaska and DC.
This first week of August the three Judge panel will sit once again in judgment of the work product of the Lab. It is reported by the lab and prosecutors alike that the multitude of problems that were exposed more than 2 years ago have been fixed. It is now up to the judicial panel to decide if the problems truly have been fixed. However, with only such a short time having passed, it is hard to imagine that such severe problems identified have been fixed. Consider the fact that; “ethical lapses,” and violations of scientific standards and lab standard operating procedures, all of which led to “The” State Toxicologist who was in charge of the breath testing program, to promptly resign, followed by the Lab’s manager, after she was discovered to have had others do her work for her, yet she signed off as though she completed the work herself, as well as, the toxicologist who most often did her work also resigned rather quickly after the 2008 hearing. While these are the most prominent actors there was an exodus of other employees.
While the 2008 hearing sparked a large turnover in the lab as well as a public commitment to “do better,” the various improvements in the lab made to date, are still far from forensically sound. Around Washington there have been hearings on this issue, with mixed results, but most recently, Skagit County did not suppress evidence but forced the state to provide information that was not previously ever presented to juries in DUI trials. Currently Whatcom County DUI cases await a ruling on this very same issue after 3 days of testimony.
It may be tempting to blame DUI lawyers and attorneys alike for the states breath testing problems, such blame is misplaced. The state and its actors have an obligation to put forward the best evidence possible in a trial. They have an obligation to adhere, not only to their own standards, but more importantly, adhere to the generally accepted scientific standards of breath testing. To do otherwise is a violation of rules but also a miscarriage of justice since innocent people may go to jail due to unsound evidence.
DUI is not a crime that engenders a sympathetic ear but neither is rape, nor murder and as we have seen far too many people have lost years of their lives due to a lack of adherence to science as evidenced by re-testing of evidence. The defense bar stands as the last line of defense to guard against taking liberty without the best possible evidence. All we ask is that evidence, in this case, breath testing evidence, be obtained in a reliable and scientific manner as the procedures, protocol, and science requires. There is no hidden agenda. Prove guilt beyond a reasonable doubt. Nothing more, nothing less.
As evidenced by the complex science associated with DUI breath testing, DUI is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
Can You Be Prosecuted For Under .08? – YES
Washington State has done a good job of publicizing that if you drive at .08 or higher, you will be prosecuted. The State Patrol’s “Drive Hammered, Get Nailed,” “Over the limit, Under Arrest,” “Buzzed Driving Is Drunk Driving,” and “Nightime seatbelt,” campaigns, are all very effective in putting the dangers and consequences of drunk driving in the minds of Washington drivers. So, knowing this, you have one glass of wine with dinner or maybe a cocktail after work or a pint of Guinness for St. Pat’s. You know you aren’t drunk. You know you are not even close to the legal limit. You are a responsible person, not a law-breaking criminal. You don’t even panic when the red and blues start flashing in your rearview mirror. Maybe you should panic. What most motorists do not know is that Washington has in fact abandoned the concept of a “legal limit” in favor of prosecuting any drinking driver, even if the driver’s breath test is well under the legal limit. The .08 limit is a half truth. I know. I have represented numerous citizens in Whatcom, Skagit, Island counties, and elsewhere who were all well under the “legal limit” of .08 but they were still prosecuted for DUI. In fact, two clients’ breath samples were .0, and another was over the limit but NOT even driving and they were all still charged and prosecuted. While the charges were all dismissed, the process was unnecessary and stressful for them.
How can this be? It happens because there are two distinct sections in our DUI law. One part of the statute sets forth the Per Se .08 “legal limit,” but the other part says you can be charged with DUI if you are “under the influence of or affected by intoxicating liquor.” Surprisingly, a driver who knows he or she is under the .08 legal limit will still be charged with a DUI if the police officer who stopped him or her forms an opinion that the person is “affected by” alcohol. The officer’s opinion is based upon his or her observations of the driver and the driver’s performance on field sobriety tests. Most of the time these field sobriety tests are not videotaped and thus, there is no independent evidence for you to rebut the officer’s opinion that you failed the tests.
If you are under the legal limit and yet charged with DUI you will face an experienced prosecutor and a harrowing journey through the legal system.
The road signs you see announcing the .08 legal limit are essentially a half-truth. The whole truth is that being under a .08 is no “safe harbor” from being prosecuted for DUI, and refusing the breath test will only make things worse. Even if you are found innocent of DUI, refusing to take the test will result in a year’s revocation of your license by the Department of Licensing. If you are convicted of DUI after refusing the breath test, you’ll lose your license for two years even if you previously had a clean criminal record. Who says our DUI laws are not tough? Taken together with the real but unannounced policy of “no tolerance” towards any drinking driver, citizens are on notice: don’t rely on being under an .08 to keep you out of jail.
