Breath of Fresh Air: Faulty DWI Breath Test Machine Affects Thousands of Cases

Posted On March 07, 2012 by Daniel Koewler

There's some shocking news coming out of San Francisco, California, where thousands of DWI breath tests are being questioned for their accuracy.

The device in question, the Alco-Sensor IV breath test device, has been used for years to test the breath alcohol concentrations for DWI suspects. And for years, the police have been forging their maintenance and calibration logs. But that's not what's shocking.

A vigilant public defender noticed the error after reviewing a machine's logs for the previous years and noticed that the breath test instrument was reporting nearly perfectly accurate results on every "control| test - something anyone knows |would be mathematically impossible.|

After the police were informed that their accuracy check logs were almost certainly being forged, another fact came to light - the alcohol/gas mixture that is used in this type of control testing (which was supposed to maintain a constant value of .082) had expired in September 2010 . . . so police didn't even know the true alcohol level of the gas they were using when they forged their calibration documents. That's awful police procedure, but not what's shocking about this case.

What is shocking is that the police, and the District Attorney's Office, almost immediately owned up to the problem. While not outright admitting that the logs for these breath test devices had been intentionally and fraudulently maintained, the District Attorney's office was first to admit that this was clearly "negligence" on the part of police. Moreover, while the investigation continues, all of the devices were pulled from normal operation.

In light of what regularly occurs in Minnesota, it's this (eventually) open and honest admission of a problem that is so shocking. While the police who were misusing the Alco-Sensor IV to gain faulty convictions should be ashamed, there is a touch of silver lining in the fact that the police and prosecutors have the integrity to own up to their own shortcomings.

Compare the actions in California with those in Minnesota - where the Intoxilyzer 5000 is still used to test our drivers, despite the fact that this machine is running with known errors that directly affect the test and the government continues to use the machine.

Compare this as well - California law enforcement admit that regular maintenance and calibration of their breath test devices is essential to the validity and reliability of their results. In Minnesota, on the other hand, our own Bureau of Criminal Apprehension has a policy of not maintaining their instruments. If it stops running, they'll send it in to fix it . . . but not before. If the simulator solution used to calibrate their machines expires (the equivalent of using the expired gas used in California), Minnesota will eventually get around to replacing the solution . . . but continue to use the machine in the meantime.

Errors that are quickly caught and quickly corrected are the norm in most states - but not in Minnesota. Here, errors are covered up, papered over or deliberately ignored. But that doesn't make them any more shocking; in fact, it makes it that much more important to find these errors and fight them.