The lynchpin of most drunk driving prosecution cases is a reliable breath testing program. Prosecutors have big problems proving guilt when the reliability of the breath tests is legitimately called into question.
This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.
According to the Houston Chronicle a Department of Public Safety contractor fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions. Instead of changing the reference sample every month as required, the contractor instead falsified the tests and pocketed $146,000 in profit.
Similarly, not long ago in the state of Washington, the state police faced fraudulent breath testing on an even larger scale. The breath test scandal in that state caused the director of teh Washington State Patrol Forensic Laboratory Services Bureau to resign. According to the Seattle Times:
Logan’s resignation comes just two weeks after a panel of King County judges ruled that the state toxicology lab — one of the two labs overseen by [the director] — engaged in “fraudulent and scientifically unacceptable” practices while preparing and analyzing breath tests used to prosecute suspected drunken drivers. The judges called for the suppression of the tests and laid much of the blame on [him], finding he bore “a good deal of the responsibility for [the lab's] shortcomings.”
Michigan has not suffered from a similar debacle, but Michigan’s breath testing program is certainly not immune from such problems.
Michigan’s breath testing administrative rules, in part, read as follows:
Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once at any time during each calendar week, or more frequently as the department may require, by an appropriate class operator pursuant to R 325.2658(4). The tests need not be performed within 7 days of each other, but shall be performed less than 14 days apart. The test for accuracy shall be made in a prescribed manner using an alcohol standard that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084 shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.
Typically Class II operators of the various police departments, jails and other law enforcement agencies prepare and run the weekly simulator tests. These are simply police officers who have only a single 6 hour day of training with at least a 70 percent on the written test. There is no proficiency testing and no oversight regarding this aspect of Michigan’s breath testing quality assurance program.
A Class IV operator will run the 120 day inspections. In neither case is there a state agency charged with oversight.
If fraud is ever to be uncovered it will be due to the efforts of the criminal defense bar. Without oversight thorough discovery and exhaustive cross-examination is the only hope a falsely accused driver has to vindicate his wrongful drunk driving charge.
What are your thoughts? Have you been charged with DUI? Do you suspect fraud? Contact a DUI attorney today to speak about the details of your case.