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Breathalzyer Tests Tossed By PA Judge

by | Jan 23, 2013

A county judge in Pennsylvania ruled that breathalyzer tests are an unreliable gauge of alcohol intoxication levels, and therefore barred them from being used as evidence in 19 of the high-level DUI cases currently pending there.

Our D.C. DUI lawyers have learned this is actually the second judge in that state to reach this conclusion, potentially opening the door to the dismissal of thousands of DUI cases there, as well as the foundation for similar findings elsewhere in the country.

D.C. has had our own share of legal issues with regard to breathalyzers. In fact, the District was forced to suspend its breathalyzer program after a medical examiner discovered the machines were delivering results that were improbably high. Now, District leaders have unveiled a new model of breathalyzer, the Intoximeter ECIR 2, that reportedly conducts two separate tests per suspect and tests the surrounding air for possible contamination.

However, even with advances in technology, breath tests on the whole are subject to critical error. That’s why so many police agencies throughout the country are tending to rely more heavily on blood tests rather than breathalyzers, though this method comes with its own set of accuracy challenges.

In the Pennsylvania case, the judge concluded that the machines were not properly calibrated to determine blood alcohol levels beyond 0.015 percent, which subsequently calls into question all breathalyzer test results. In Pennsylvania as in D.C., a reading above this level can result in enhanced DUI penalties.

The judge reasoned that BAC results obtained the Intoxilyzer 5000EN device used throughout the state can’t be trusted because of the calibration method. Specifically, the operational calibration of the devices is limited to the range of 0.05 percent to 0.015 percent. This flies in the face of state standards, and therefore any reading above or below this can’t be relied upon for the level of accuracy necessary to meet the high burden of proof necessary for a person to be charged, let alone convicted.

In order to meet this high standard, the judge found that the method for calibration of the machines would have to be “significantly adjusted to accommodate for that extended spectrum of linear dynamic range.”

He added that it’s not that the machines are incapable of ever producing an accurate result beyond this range. The problem is that because it can’t do so with reliable and consistent accuracy, all of the results beyond this range must be treated as potentially inaccurate.

The case before him involved a 31-year-old man who crashed his vehicle near a creek in a Pittsburgh suburb. Officers reported he smelled strongly of alcohol, had red eyes and his speech was slurred. He staggered as he walked and even told the officers he had been drinking prior to getting behind the wheel.

There is no question of the probable cause for arrest based on that alone. But the breathalyzer test results showed him to have a blood alcohol content of between 0.208 percent and 0.214 percent – well above the legal 0.08 percent limit and high enough to qualify him for enhanced penalties for a high-level DUI.

But after the judge heard a motion to quash by the defense, which presented extensive evidence regarding the errors associated with breathalyzer tests beyond that 0.015 percent range, the judge agreed to remove the breathalyzer from the evidence to be considered.

Already, at least one lawyer has used this ruling to request all high-level DUI convictions and pending cases in the state be reviewed and/or dismissed.

If you have been arrested for DUI in D.C., contact the Scrofano Law, PC by calling 202-765-3175.