Florida DUI Convictions Based on False Alcohol Breath Test Machine Results
For years, drivers throughout Florida have been convicted of driving under the influence (DUI) based on false results from defective alcohol breath test machines.
The problem was recently identified by defense attorneys who noticed that the machines (Intoxilyzer 8000) were reporting impossible results. For example, one machine reported that some drivers blew 10, 11, and even 12 liters of breath into the device. However, humans have a maximum lung capacity of only about five liters.
This is important because an accurate measure of the volume of air blown into the machine is absolutely essential for accurately estimating blood alcohol concentration (BAC).
The breath test is one of the most powerful pieces of evidence in DUI trials because if a machine reports that a person's BAC was above 0.08 percent, the law in Florida requires that a jury assume the driver was guilty.
The defective machines were used for years because state officials never tested a key component or performed mandatory reviews of breath tests. After learning of the problem, Florida Department of Law Enforcement (FDLE) quietly started fixing machines and putting them back into service. When inspectors began the process of checking every machine in the state, they found that about 40 percent of the machines checked were defective.
Unfortunately, FDLE officials did not inform defendants who may have been wrongfully convicted or unfairly lost their driver's licenses after being tested on the flawed machines and then convicted. Thus, the victims were unable to challenge their unjust convictions.
Protect yourself and don't become an innocent victim of a defective alcohol breath tester or indifferent public officials in any state.
To do so, don't drink and drive. Use a designated driver, a cab, public transportation, or ask a friend to drive you home.
If you must drive after drinking, stay completely sober:
- Don't be fooled. The contents of the typical bottle or can of beer, glass of wine, or liquor drink (mixed drink or straight liquor) each contain virtually identical amounts of pure alcohol. When it comes to alcohol, a drink is a drink is a drink. They're all the same to a breathalyzer. For more, visit Standard Drinks.
- Know your limit. If you are not sure, experiment at home with another responsible adult. Most people find that they can consume one drink per hour without any ill effects.
- Eat food while you drink. Food, especially high protein food such as meat, cheese and peanuts, will help slow the absorption of alcohol into your body.
- Sip your drink. If you gulp a drink, you lose the pleasure of savoring its flavors and aromas.
- Don't participate in "chugging" contests or other drinking games.
- Accept a drink only when you really want one. If someone tries to force a drink on you, ask for a non-alcohol beverage instead. If that doesn't work, "lose" your drink by setting it down somewhere and leaving it.
- Skip a drink now and then. Having a non-alcoholic drink between alcoholic ones will help keep your blood alcohol content level down, as does spacing out your alcoholic drinks
- A good general guideline for most people is to limit consumption of alcohol beverages to one drink (beer, wine or spirits) per hour.
- Keep active; don't just sit around and drink. If you stay active you tend to drink less and to be more aware of any effects alcohol may be having on you.
- Beware of unfamiliar drinks. Some drinks, such as zombies and other fruit drinks, can be deceiving as the alcohol content is not detectable. Therefore, it is difficult to space them properly.
Better safe than sorry.
- Ruger, T. Prosecutors drop breath-test machine evidence in 100 DUI cases. Herald-Tribune, October 12, 2011.
- Accuracy of Ohio police breath test machines questioned. November 15, 2011. Available at wcpo.com/dpp/news/ 9- news-exclusive%3A-accuracy-of-ohio-police- breath- test- machines-questioned,-sobering- questions- remain
- Associated Press. Calif. DUI defendants can challenge breath tests: State Supreme Court says accuracy of Breathalyzers vary. July 9, 2009. Available at msnbc.msn.com/id/31836781/ns/us_news-crime_and_courts/t/calif-dui-defendants-can-challenge-breath-tests/#.T230FByWj7c
- Drivers can test alcohol in blood. The Washington Times, August 29, 2002, page A3.
- Gullberg, R.G. and Polissar, N.L. Factors contributingh to the variability observed in duplicate forensic breath alcohol measurement. Journal of Breath Research, 2011, 5(1), 016004.
- Joseph, J. Are Breath Tests Accurate: Defense Lawyers Often Challenge their Use as Evidence, and Win. ABCNEWS.com. Can be found at howstuffwords.com/breathalyzer.html/.
- Martin, T.L. Evaluation of the Intoxilizer 8000C evidence breath alcohol analyzer. Canadian Society of Forensic Science Journal, 2011, 44(1), 22-30.
- Mosier, Jeff. Fighting MADD over the DWI "lie." Dallas Morning News, April 22, 2004.
- Neff, Elizabeth. Appeals court sides with driver on alcohol test. Salt Lake Tribune, June 11, 2004.
- New law supersedes Supreme Court ruling on breath tests. Seattle Post Intelligencer, July 1, 2004.
- O'Hagen, Maureen. State broke breath-test rules. Seattle Times, July 2, 2004.
- Pariser, J. L. In vino veritas: the truth about blood alcohol presumption in state drunk driving laws. New York Law Review, 1989, 64(1), 141-181.
- Peach, R. J. Who tests the DUI test? Defense can't; New Jersey won't let lawyers inspect new breath tests. The National Law Journal, 2000, 23(6), A4.
- Peras, A. Miranda rule in DUI law sparks debate. The Greenville News, August 15, 2003.
- Rawls, E. The Intoxilyzer isn't perfect: Judges in DWI trials must stand for justice despite pressure from public. Charlotte Observer, August 20, 2004.
- Rodriguez, I. DWI cases handcuffed, San Antonio Express-News, June 7, 2003.
- Rosenblum. E. Breathlayzer machines are faulted once more. New Jersey Law Journal, 1988, 122(23), 5.
- Sargeant, G. Breathalyzer accuracy challenged. Trial, 1989, 25(12), 22.
- Schechtman, E.. and Shinar, D. An analysis of alcohol breath tests results with portable and desktop breath testers as surrogates of bloodalcohol levels. Accident Analysis and Prevention, 2011, 43(6), 2188-2194.
- Taylor, L. Drunk Driving Defense. New York: Aspen Law and Business, 5th edition, 2000. (This is the best single source of information on breathalyzer accuracy and inaccuracy.)
- Ziemer, David. Both breath, blood tests cannot be taken. Wisconsin Law Journal, Octber 8, 2003.
filed under: Breathalyzer