Motorists in Washington, DC may have been falsely accused of driving under the influence of alcohol (DUI) for more than a decade as a result of faulty “Intoxilyzer” breath testing equipment. Whistleblower Ilmar Paegle, a veteran police officer now working as a contract employee for the District Department of Transportation, argued in a memorandum to the city’s attorney general that the breath testing machines have not been properly calibrated since 2000, as first reported by WTTG-TV.
To date, the District has only admitted to bogus breathalyzer results taken between September 2008 and February 4, 2010. Of 1100 cases prosecuted in that period, 300 were convicted based on evidence provided by faulty machines.
“As a result of the miscalibration the instruments apparently produced results that were outside the acceptable margin of error to be considered accurate,” Deputy DC Attorney General Robert J. Hildum wrote in a June 4 letter to DC trial lawyers. “OAG [office of the attorney general] is in the process of notifying the defendants and their counsel in those cases.”
Paegle’s discovery that the breathalyzers producing bogus results forced the Metropolitan Police Department to stop using the machines on February 4 and switch to Intoximeters. Hildum blamed the problems on Officer Kelvin King who began replacing motors in the breathalyzers in September 2008 as part of routine maintenance. Under DC law, the machines must be tested for accuracy every three months, but the District failed to codify procedures or standards for this testing. Paegle was concerned that the District has never performed these accuracy tests, raising concern among legal experts.
“You too could have been pulled over on the basis of a minor traffic violation and put through a series of difficult and humiliating field sobriety tests,” DC-based defense attorney Jamison Koehler wrote on his law firm’s blog. “After blowing into the breath test machine, you could have spent the night in a jail cell with other people who were drunk, angry, disorderly, mentally ill or whose sweating, panting and retching signaled to you that they going through drug withdrawal. You could have had to shell out thousands of dollars to hire a lawyer and missed work on so many occasions to attend court hearings that your employer warned you might be fired…. On the basis of the faulty breath test results, you too have been convicted of driving while intoxicated even with blood alcohol levels far below the legal limit.”
A copy of the OAG memo is available in a 220k PDF at the source link below.
Source: 
Letter to DC Superior Court Trial Lawyers Assoc. (DC Office of the Attorney General, 6/4/2010)
[Courtesy:Thenewspaper.com]
DUI enforcement by breathalyzer makes about as much sense as safety enforcement by radar gun. You can’t quantify dangerous. Fixation on a sole variable they picked because it is quantifiable leaves actual dangerous as an afterthought at best.
The roads would be safer if those gadgets hadn’t been invented.
I don’t know about breathalyzer equipment, but I do know lab equipment. In a well functioning lab, the standards / procedures of accuracy, precision, reliability are astoundingly good.
If breathalyzers were wildly inaccurate, where are the Investigative Reports comparing breath results versus blood results? Finding independent labs to compare and contrast such results shouldn’t be that difficult. A J-Skool grad on local TeeVee should be able to manage such a story…
And where are the Trial Bar, Defense Attorneys, and the Class Action parasites? Surely they could afford a study highlighting the inaccuracy of Breathalyzer equipment versus that of blood tests?
But they don’t. Why? Because the science and stats, for those without foil hats, are pretty sound…
I’m not saying I don’t trust breathalyzer equipment to give accurate results. One miscalibrated unit is hardly epidemic.
I’m saying defining dangerously impaired driving by that single result, however accurately measured, is oversimplification of a complex problem and leads to inappropriate conclusions.
An arbitrarily defined BAC doesn’t cause head on collisions. Leaving your lane does. It would be better use of enforcement to look for the latter.
ihatetrees wrote: If breathalyzers were wildly inaccurate, where are the Investigative Reports comparing breath results versus blood results?…Because the science and stats, for those without foil hats, are pretty sound…
http://blog.motorists.org/its-just-a-decimal-point-the-dirty-secret-behind-breathalyzers/
http://www.californiacriminallawyerblog.com/2008/02/san_diego_dui_defense_brethaly.html#more
http://www.azduiatty.com/close-enough-for-government-work.htm
http://www.ridl.us/research/Variable_Affecting_Accuracy_Precision_of_Breath_Alcohol_Instruments_Including_Intoxilyzer_5000.pdf
DUI laws and their implementation are a sacred cow unassailable by fact.
Yet I bet the department will get off with nothing more than a slap on the wrist at best after possibly screwing up many many peoples lives with false accusations.
(I don’t agree with aspade.)
“Hildum blamed the problems on Officer Kelvin King who began replacing motors in the breathalyzers in September 2008 as part of routine maintenance. Under DC law, the machines must be tested for accuracy every three months, but the District failed to codify procedures or standards for this testing.”
Hildum should not be blaming Officer King, but rather that officer’s management which failed to put clear policies into place, failed to ensure these were in compliance with the law and failed to ensure these were being followed…
Every three months is ridiculous. My wife worked at an occupational health clinic and they calibrated their breathalyser EVERY DAY. It doesn’t take long at all to go through the procedure.
Didn’t any lawyer in all these years ask for the calibration records of these machines?
In DC you can be convicted of DUI just based on the word of the officer. If he said you were impaired you will be arrested even if you blow a 0.02
If testimony is enough, then why bother to spend the bucks to buy such a device? Afterall, a cop’s opinion doesn’t really have a calibration procedure…
You can be convicted in any state at .02. The law says drunk. The difference is with a breathalzer you are automatically presumed drunk at .08 or .10 (whatever the legal limit), while at a lower level you’d have to PROVE someone was drunk (statements, evidence of what the person drunk, witness, etc) which is such a pain must states don’t bother with it.
I’d be curious to know out of the 1100 cases (only 300 prosecuted) which means the rest probably went into diversion.
I think you may have misunderstood the 300/1100 relationship. Article states 300 were convicted based on breathalizer evidence. Doesn’t say that 800 were not convicted. Could be just as likely that a good portion of these were convicted based on other evidence or tests.
“As a result of the miscalibration the instruments apparently produced results that were outside the acceptable margin of error to be considered accurate,” Deputy DC Attorney General Robert J. Hildum wrote in a June 4 letter to DC trial lawyers. “OAG [office of the attorney general] is in the process of notifying the defendants and their counsel in those cases.”
The Deputy AG could have been more specific.
How far outside limits? What was the ‘acceptable margin of error’? How much variation in error among all miscalibrated machines? As a lawyer, the AG is probably a math & stats tard, but he could pay someone to show how likely/unlikely it is that these machines improperly convicted people. My guess is that it would be statistically very unlikely. But it would be nice to know.
And did the errors tend to overstate the alcohol level or understate it? I’d bet on the former.
I’d bet on the former.
If the results were high, my guess is that the cal errors would be in the range of 5-10% of the BAC result – NOT basis points. Hell, a 20% error means, on a reading of 0.150% BAC, the actual real result was 0.125% BAC.
Now legally, this may be enough to reverse a conviction. But it hardly supports deification of most DUI defendants as pimped by the Defense Bar (and The Newspaper).
first thing the defense had to do is ask when the machine was calibrated?
even if it is being calibrated now, will it do any good? as trials are usually 6 -12 mths later.
Even 12 mths later if the result is not correct then they may have a good argument that it didnt function as advertised when the test was done.
Now it really opened a tin of worm.
if it gets overturned the A G has to pay for damage, reputation, absent from work , or fired as a result of this happened.
understate it
if it were understated, then more folks got off.
i suppose if it were reported higher that affect the convictions though.
if it were .14 , u need a lot of errors to say u were infact .07! u need to argue it has plus or minus 50%
another problem how much % of error is there though?
does a court view a piece of equipment same as a person who lied once and deemed all his evidence are totally un-reliable?
or accept + or – 20% error as the base line.
ie 10% error on radar so doing 100 mph if it clocks u at 105 then u could be only doing 95 mph, if the speed limit is 100 then u may not have broke the law.
or if the machine was not calibrated , the court cannot accept its reading totally?
Now legally, this may be enough to reverse a conviction.
One of the primary questions an attorney would ask is ” when was the machine last calibrated?” And if the prosecutor didn’t produce a current document of accuracy then unless there was other evidence such as a blood test, accident, or an admission of guilt by the driver then it’s case dismissed.
You can have a strong smell of alcohol on you from having a drink spilled on your shirt. The law gets involved at legally agreed to BAC levels for a reason, to provide a line that once crossed the fines, fees, and most important sky high insurance rates kick in.
Anyone that was convicted on a .08 to .10 reading needs to lawyer up and go after this. They stand the best chance of getting a lot of money back, although not their reputation.
On a side note I know someone who refused the breath and blood test in DC. They lost their driving privleges in VA but not their home state license. Their insurance was not raised since there was no conviction for the crime, the lawyer took 2500.00. Sounds expensive but compared to the cost of the DUI it was a relative bargain. The insurance alone would have been 3000 a year for 3 to 5 years and the fines much more than that. Plus the community service slavery and classes you have to pay for, and so much more.
Drink driving is wrong but it’s a cash crop for the system.