Daniel Hynes

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Breathalizers and civil liberties

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Will Breathalyzer Tests Become the Next Civil Liberties Issue? Part 1

On a Saturday, a New Hampshire college student is pulled over by a police officer. Because a football game is being played that day, the local police agency has established DWI checkpoints across the city to keep the number of drunk drivers on the road to a minimum. The officer who pulled the student over states that he observed the student’s vehicle swerving within its lane and asks the student to submit to a Breathalyzer test.

The student states that he only consumed a couple of beers during the game. He is subsequently arrested, but ultimately, he is not convicted of a DWI because the results of his blood test show that his BAC levels were below the legal limit. However, the university he attends hears of his arrest, and now, his entire future is at risk – due to a faulty Breathalyzer machine.

Although the aforementioned scenario is hypothetical, it surprisingly occurs all too often. The simple act of being arrested on suspicion of DWI is enough to negatively affect one’s employment, educational efforts, and their reputation. For example, a truck driver who is arrested on suspicion of DWI could have their CDL license revoked, which would result in the loss of their livelihood.

Both in New Hampshire and nationwide, intoxicated motorists remain one of the primary public safety concerns. According to data released by the Center for Disease Control (CDC), impaired drivers cause 30% of automobile related deaths each year. The Breathalyzer test is frequently employed by police officers as a means of removing intoxicated drivers from roadways; however, there is mounting concern over the flaws in this tool used by police agencies. Consequently, motorists’ civil liberties could be violated.

In recent years, the use of portable Breathalyzer machines has been steeped in controversy as the court system strives to determine if this type of test is both operationally and scientifically sound. DWI cases are generally determined through one of two ways: whether or not the motorist seems impaired and through the use of Breathalyzer machines to gauge one’s blood alcohol content.

A New Hampshire motorist who is suspected of driving while intoxicated will generally be given two different Breathalyzer tests. One is administered by the arresting officer at the scene of the traffic stop, and the second is given at the local police precinct or another designated testing facility. The Breathalyzer test that is administered roadside is supposed to be used “only as an indicator” of a motorist’s intoxication. Although the results of this first test are usually fairly accurate, this test is not admissible in a court of law.

Breathalyzer tests are administered as a means as a means of assessing whether or not a motorist has too much alcohol in their system, but legally acceptable blood alcohol content levels vary from one state to the next. In the state of New Hampshire, the legal limit is .08% - as it is in all other 49 states. However, in some states, a motorist can be arrested for a DWI, even if they blow below the legal limit, if a police officer testifies that the suspect was acting intoxicated. In some states, there is a mounting push to have the legal limit lowered to .05%.

In the United States, approximately 30 motorists die each day from alcohol related automobile crashes, according to the CDC. Over 112 million motorists each year report driving while under the influence of alcohol. In 2010 alone, approximately 1.4 million people were arrested alcohol or drug related DWIs.

The number of preventable deaths is certainly devastating; however, many argue that only a very small percentage of the driving population is responsible for deaths resulting from drunk driving. Impaired motorists, who have a blood alcohol content of .08% and are involved in a drunken driving fatality, are nearly 7 times more likely to have a previous DWI conviction than motorists who do not have alcohol in their bloodstream. Furthermore, studies have shown that alcohol can affect a person’s fine motor skills the morning after their drinking binge.

Law enforcement agencies owe the public a duty to ensure their safety and prevent intoxicated motorists from hitting the road; however, police officers must maintain a delicate balance between maintaining vigilance and pursuing the wrong suspect.

Defective Breathalyzer machines have created cause for hundreds of DWI cases, across the United States, to be thrown out. Due to the use of faulty machines in Washington D.C., nearly 400 motorists may have been wrongfully convicted of DWI in 2010. Of this total number of cases, only 50 defendants challenged their DWI cases in a court of law. The local government in D.C. was required to pay nearly $400,000.00 in legal judgments. In California, a similar situation occurred – throwing thousands of cases into mass confusion.

In most jurisdictions, the primary culprit at fault in these cases was the Intoxilyzer 8000 Breathalyzer machine. Recently, the Supreme Courts of both Oklahoma and Ohio determined that the Intoxilyzer machines their police officers were using were unreliable and faulty. It was not uncommon for this machine to report levels of intoxication that were physically impossible for a human being to reach. Similar concerns have been raised regarding the Intoxilyzer 5000, another machine that is commonly used by law enforcement. The Intoxilyzer brand of Breathalyzer machines are used in more than 35 states across the country. The primary issues that arise from the use of these machines include a lack of universal standards and false readings.

Here is where we are going to pause for today, but tune in tomorrow as we continue to discuss the mounting problems concerning Breathalyzer tests.

If you believe that your DWI case may have involved the use of a faulty Breathalyzer machine, please contact our law firm today to set up a free consultation regarding your case.

Will Breathalyzer Tests Become the Next Civil Liberties Issue? Part 2

Returning to our discussion about Breathalyzers machines from yesterday, we mentioned that the two primary problems arising from the use of these machines are 1) a lack of universal standards and 2) false readings.

As with any type of machine, electrical and mechanical problems often occur with Breathalyzer machines; however, these machines are supposed to be tested, calibrated, and maintained by a person who has been trained and certified to do so. Unfortunately, it is rare for police agencies to have a competent person on staff to maintain the machines’ upkeep.

Moreover, there are a number of interference problems that arise from the use of Breathalyzer machines. For example, the Intoxilyzer models of Breathalyzer machines have demonstrated a tendency to produce higher BAC readings if nearby radio frequencies are present in the air, like those emitted by walkie talkies and police scanners.

Additional problems are created in the fact that there exist a number of different environmental and health factors that can affect the blood alcohol content levels a machine registers. For example, the time of day can affect a Breathalyzer test’s readings because the human body naturally produces ethanol (a type of alcohol) in the gut. Other medical and health conditions that could affect BAC readings include diabetes, fasting for medical purposes, and even smoking. Individuals with hypoglycemia or diabetes generally have higher concentrations of acetone on their breath, which frequently produces false positives during a Breathalyzer test.

There are quite a number of common household cleaners and substances that can fool a Breathalyzer machine. The Academy of Emergency Medicine recently published a study that concluded that hand sanitizers made with an alcohol base can alter the readings of a Breathalyzer machine. 75 participants in the study used alcohol based hand sanitizers, which created false positive readings. In a similar fashion, windshield wiper fluids, which have an alcohol base, have also been used to create false positive BAC level readings.

According to data cited on their website, Mothers Against Drunk Driving (MADD) states that 50-75% of motorists convicted of a DWI choose to continue to drive on the road even if their driver’s license has been suspended. Furthermore, the average motorist has driven drunk approximately 80 times before they are arrested for the crime.

Another primary issue arises in how states choose to administer Breathalyzer tests. A handful of states in the United States do not require two separate tests to be administered. This creates a problem because a single reading’s results become confusing since no comparison exists. In order for an arrest to be lawful, probable cause must exist. Whether or not Breathalyzer results, given their capacity for error, provide enough probable cause has been the subject of much debate.

It has been estimated that 1 in 3 DWI arrests and convictions result from faulty Breathalyzer readings; however, attempting to combat this problem has produced both cultural and legal challenges. DWI case law maintains its own set of Constitutional interpretations, and this type of case law is rarely applicable to other types of criminal law. For example, a DWI roadblock wherein officers stop motorists and inquire whether or not they have been drinking are legally permissible. Yet, under another set of circumstances, the indiscriminate stop would be considered a violation of the motorist’s legal rights.

When a motorist is stopped on suspicion of driving while intoxicated, they do not have an automatic right to have an attorney present if a police officer requests that they undergo a Breathalyzer test. The law enables government officials to suspend one’s license. Additional punishments are meted out to those who refuse to submit to a breath test. Based upon current laws, police officers can pull a motorist over on suspicion of drunk driving based upon an anonymous tip – even if the driver was not swerving or displaying other signs of intoxication. This Supreme Court decision, which was passed in April of 2014, highlights many of the deep seated tensions surrounding DWI cases.

DWI case law across the country is undergoing many changes due to mounting public pressure as more and more individuals begin to demand more protection from police and government intrusion in their personal lives. Public distrust of the police has continued to grow in light of many recent headline making cases, like the civil unrest in Ferguson, Missouri. The debate regarding police powers and civil liberties has not yet touched upon DWI cases and the use of Breathalyzer machines, despite the fact that these tools have a high potential for abuse.

It is a well-known fact that police officers unfairly target minorities and people of color when it comes to making traffic stops. Minority drivers are frequently pulled over for no apparent cause, and there have been allegations that suspicion of DWI has been abused as a means of pulling over these individuals. Recently, Washington Monthly conducted a study that discovered African American drivers were five times more likely to be pulled over by police officers for investigatory stops than any other race. Breathalyzer machines could become one more tool that law enforcement agencies use to target non-Caucasian motorists.

While Breathalyzer machines certainly play an important role in keeping intoxicated motorists off the roads and in preventing unnecessary deaths, they also create issues regarding the targeting of innocent persons and the protections afforded by the Fourth Amendment.

If you have been arrested for a DWI in the state of New Hampshire, please contact our law firm as soon as possible. Your initial consultation is free, and our skilled and experienced NH DWI attorneys will work closely with you to obtain the best possible outcome for your case – including challenging faulty Breathalyzer results in court. Time is of the essence, so don’t delay.

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Guest Wednesday, 19 February 2020