This excellent article was sent to me by my good friend and great lawyer, Stephen Hampton, Esq*.  It really is pretty scary!  As if we don’t have enough innocent people in prison already – somewhere between 10,000 and 100,000 (nobody knows the actual number) – here is cause for more!  🙁 

This article is as exhaustive (Because these articles go to my newsletter, and this is so long,I have had to omit much of it) as it is illuminating. IF YOU ARE A PROSECUTOR OR A DEFENSE LAWYER, YOU SHOULD – MUST –  READ THE ENTIRE ARTICLE! It discusses various types of machines/devices and their problems. IT’S A SHOCKER!

I handled at least 1,000 DUI cases, tried over 100, and never had this problem, because I made sure the machines had been properly calibrated, and the exact ones described here did not yet exist.

*Stephen Hampton
sahampton@gradyhampton.com
Grady and Hampton LLC
6 North Bradford Street
Dover, DE 19904
302-678-1265

For DUI cases in Delaware, contact my friend and excellent Defense Attorney,

John Garey, Esq.:

48 The Green, Dover, DE 19901

You can’t do better than John!

Excerpts from the Article:

A million Americans a year are arrested for drunken driving, and most stops begin the same way: flashing blue lights in the rearview mirror, then a battery of tests that might include standing on one foot or reciting the alphabet.

What matters most, though, happens next. By the side of the road or at the police station, the drivers blow into a miniature science lab that estimates the concentration of alcohol in their blood. If the level is 0.08 or higher, they are all but certain to be convicted of a crime.

But those tests — a bedrock of the criminal justice system — are often unreliable, a New York Times investigation found. The devices, found in virtually every police station in America, generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place.

Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight. Across the country, thousands of other tests also have been invalidated in recent years.

The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.

There are more than a million drunken driving arrests in America each year, but the devices the police use to test drivers’ breath may not even work.

Technical experts have found serious programming mistakes in the machines’ software. States have picked devices that their own experts didn’t trust and have disabled safeguards meant to ensure the tests’ accuracy.

The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.

A county judge in Pennsylvania called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny. In response, local prosecutors stopped using them. In Florida, a panel of judges described their state’s instrument as a “magic black box” with “significant and continued anomalies.”

Even some industry veterans say the machines should not be de facto arbiters of guilt. “The tests were never meant to be used that way,” said John Fusco, who ran National Patent Analytical Systems, a maker of breath-testing devices. Yet the tests have become all but unavoidable. Every state punishes drivers who refuse to take one when ordered by a police officer.

The consequences of the legal system’s reliance on these tests are far-reaching. People are wrongfully convicted based on dubious evidence. Hundreds were never notified that their cases were built on faulty tests. And when flaws are discovered, the solution has been to discard the results — letting potentially dangerous drivers off the hook.

 … Massachusetts was forced to throw out their breath tests — along with more than 36,000 others — in one of the largest exclusions of forensic evidence in American history.

In most of the country, the threshold for illegal drunkenness is 0.08 grams of alcohol per 100 milliliters of blood. The only way to measure that directly is to draw blood, which requires a warrant. Breath tests are simpler.

Testing machines can go for $10,000 or more, and some two dozen companies sell them in the United States. The biggest contracts, with state police crime labs, are worth millions.

The report said the Alcotest 9510 was “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” It described a calculation error that Mr. Walker and Mr. Momot believed could round up some results. And it found that certain safeguards had been disabled.

The decision caused paralysis. Prosecutors froze thousands of cases until the review was finished.

The software experts and scientists who inspected the Alcotest 9510 machines found troubling mistakes, according to their reports to the court. In some circumstances — when the devices’ two testing methods produced substantially different results, for example — the machines were supposed to generate error messages and terminate the test. Instead, the devices printed a result. (Dräger blamed an error by its computer programmers, which it said has now been fixed.)

But the machines weren’t the only problem. The Massachusetts forensic lab, which for years had been plagued by scandals over faked drug test results and tampered evidence, lacked a written procedure to set up and test machines, the lab’s technical director testified. The justice hearing the case, Robert A. Brennan, said the lab could not prove that it had followed a “scientifically sound methodology,” and in 2017 he threw out all of its breath test results from 2012 through 2014. That was only the beginning. Lawyers soon discovered that the lab had hidden records of hundreds of failed calibrations. The discovery provoked a state investigation that blasted the lab’s leadership for “serious errors of judgment.” Justice Brennan later expanded his previous order: No tests from the lab were admissible until it was accredited by a national board that oversees forensic labs. Eight years of tests — more than 36,000, according to defense lawyers — were suddenly off-limits.

Nearly 29,000 of the invalidated tests in Massachusetts were already used to convict drivers, state records show. This month, the state will begin informing those defendants that they can seek a new trial, and lawyers are bracing for a flood of requests. So are lawyers in New Jersey, where more than 13,000 people were found guilty based on breath tests from machines that hadn’t been properly set up. Between those two states, at least 42,000 convictions are at risk. Thousands of other defendants have already been acquitted in cases that prosecutors believe they would have won if they had been able to use their most powerful piece of evidence.

And recognition of the tests’ problems is spreading. In Minnesota, a judge ruled last year that the state’s machines appeared to be rounding up results, falsely nudging some defendants over the legal limit. (A spokeswoman for the state’s testing program said the judge misunderstood the technology.)

And in courts around the country — including one last year in Queens County, N.Y. — judges continue to toss out individual cases when questions arise about the tests’ accuracy.

“If we are going to put people in jail and punish people, take their liberties away, take their licenses away, we have an obligation to be accurate,” said Joseph Bernard, the defense lawyer who helped Mr. Mottor get a new trial and is representing dozens of others in Massachusetts.

But there is a cost. Throwing out tens of thousands of faulty breath tests will inevitably let some dangerous drivers back on the road.

“Let’s not fool each other,” Mr. Bernard said. “I am not going to sit here and tell you that situation and that dynamic isn’t going to happen. Of course it’s going to happen. The question is, whose fault is it?”

 

The Whole Story: