
Researchers say a breathalyzer has flaws, casting doubt on countless convictions - uptown
https://www.zdnet.com/article/draeger-breathalyzer-breath-test-convictions/
======
stochastic_monk
This is a feature, not a bug.

In fact, many jurisdictions have requirements that, above a breathalyzer-
reported BAC threshold, different minimum mandatory punishments are levied.
Sure, a sober person won't get a result that's above the legal limit most of
the time, but someone who's done some drinking and is within appropriate
parameters is often labeled as DUI, and could potentially register as above
this higher, mandatory-jailtime, mandatory-felony situation.

I've known of cases where the breathalyzer in question has been shown to be
broken and decommissioned, yet the people whose numbers were so wildly
inflated that they couldn't possibly be accurate have still been convicted
using these numbers.

In one case in particular, the judge ruled that the evidence on the
unreliability of the machines in general (and _this_ machine in particular)
was not admissible for court.

It's about punishment, not deterrence.

------
thaumaturgy
It doesn't look like this is an error that will cause a totally sober person
to fail a breathalyzer test. If you're worried about the accuracy of the
machine, you can also submit to a blood test:
[https://duilawyerlosangeles.com/dui-lawyer-advice-
breathalyz...](https://duilawyerlosangeles.com/dui-lawyer-advice-breathalyzer-
vs-blood-test/)

This is one issue where I'm firmly on the side of the police until there's
evidence that faulty breathalyzers are putting totally innocent people in
jail. If you choose to get into the driver's seat of a car, you should not be
anywhere near the legal BAC limit. By the time an officer asks you to submit
to a BAC test, they've already observed enough behavior to make them believe
that you may be a danger to others.

Plan ahead so that you don't have to worry about leaving your car somewhere.
Call an Uber or a Lyft. Get a friend to drive you home. Moderate your
drinking. Take some time, go for a long walk. On popular holidays in many
places, you can even call AAA for a free ride home, even if you're not a
member.

Just please don't drive home on the hope that a defense lawyer can argue on
your behalf that breathalyzers aren't reliable.

~~~
Clubber
When someone blows a 0.08 when it really is a 0.07, that would be putting an
innocent person in jail.

~~~
thaumaturgy
In case it wasn't clear from my comment, I'm less willing to argue for the
innocence of a person who was at .07, or .075, or .0799, because of the
potentially serious consequences of their decisions and the number of
convenient alternatives they had available.

That's my personal position on this. It's consistent with my own moral
framework. I get that there's a valid counterargument from a position of law-
and-order morality.

But I've also had friends who were first responders to a horrifying drunk
driver collision. Trying to keep innocent people from bleeding out on the side
of the road messes you up for a while. It's not a victimless crime.

You can get from .08 to .06 by walking around for an hour. If you think you
might be close enough to borderline, go take a walk.

~~~
camgunz
> You can get from .08 to .06 by walking around for an hour. If you think you
> might be close enough to borderline, go take a walk.

This isn't what the science says, and you can't "think you might be close
enough to borderline" because you don't have an internal BAC meter. All in all
this is extremely bad advice.

~~~
djrogers
> This isn't what the science says

Umm yeah - science and personal experience say it really is. Do you have a
source for your claim?

~~~
Dylan16807
Science says that when you start walking, your body stops absorbing alcohol
from your digestive tract?

What if that walk takes you from .6 to .8? Oops.

~~~
djrogers
Citation please? That's not supported by any of the studies I've read or
personal experience with BAC testing. In fact, pretty much everything points
to walking having no affect on alcohol metabolism at all, so what you've done
is spent an additional hour metabolising the alcohol, and lowering your BAC.

~~~
Dylan16807
[https://mcwell.nd.edu/your-well-being/physical-well-
being/al...](https://mcwell.nd.edu/your-well-being/physical-well-
being/alcohol/absorption-rate-factors/)

"A person who has not eaten will hit a peak BAC typically between 1/2 hour to
two hours of drinking. A person who has eaten will hit a peak BAC typically
between 1 and 6 hours, depending on the amount of alcohol consumed."

Walking does nothing, but giving the alcohol more time to absorb can take you
from safe to unsafe.

------
nerdponx
Remind me again why a device paid for with public funds and used to carry out
essential public functions of the government should be anything but open
source.

~~~
jpdb
Because the software/IP isn't owned by the government.

I'd personally rather the US government pick the best solution, not the most
open source one.

I would hope the best solution is open source, but the gov't shouldn't be
forced to sacrifice quality.

However, I can agree that any Software/IP developed via public funds should
definitely be open source.

~~~
thatcat
How should the public verify the government has chosen the best solution if
the design of the solution isn't readily available? Depending on your
perspective and definition of best, faulty designs that give more favorable
results could deliberately be chosen to increase revenue / crime stats.

------
dbrgn
In Switzerland, breathalizers may be used to justify pulling people out during
traffic controls, but only a blood test is valid proof of too much blood
alcohol before court. Is that different in the US? After all, even ripe fruit
can result in a breath test indicating too much alcohol.

~~~
skc
There are now breathalyzers that are near enough as accurate as blood tests
that are admissible in court these days.

But they are huge machines kept at the police station after you've been hauled
in after failing the normal road side breathalyzer test.

~~~
MertsA
>There are now breathalyzers that are near enough as accurate as blood tests

But in the general case this is quite simply not possible. It might be very
accurate in the controlled case of a subject who hasn't consumed anything in
the past hour but these breathalyzers are not being used in a nice controlled
environment. The concentration of alcohol in a breath can vary wildly compared
to the concentration in the blood. If someone used e.g. mouthwash a few
minutes before being tested it will indicate a high BAC even if it's actually
zero.

Unless the police are going to start forcing people to brush their teeth,
clean their tongue, and use some form of non alcoholic mouthwash before
testing you can't come close to the sort of accuracy that an actual blood test
would give. In real world conditions there are too many situations where the
concentration of alcohol in your breath is substantially different than the
concentration of alcohol in your blood.

------
DennisP
The police department says they "approved the instrument that best fit our
business needs." It's a bit disturbing that they think of themselves as a
business, especially since arguably their business need is to get as many
convictions as possible.

------
instaheat
I got a DWI in 2009, pre Uber/Lyft. I don't excuse my actions and I got what I
deserved.

That being said, I would never consent to a breathalyzer or field sobriety
test today sober or not. I see no issue with flexing our rights and really get
tired of the "just comply" narrative.

~~~
frandroid
As opposed to pre taxis?

------
kkielhofner
It should be know that in many jurisdictions (at least within the US) the
officer's belief that you're impaired is usually enough for arrest -
regardless of the outcome of any field sobriety tests or machine results.

On one hand I understand this approach due to the dizzying array of factors
that cause impaired driving - from alcohol to prescription drugs to designer
drugs that may not have definitive tests available. Seeing as sleep deprived
drivers often perform as poorly as impaired drivers on various tests that
should be included as well.

On the other, this is still a situation where an officer's opinion with no
supporting evidence (or conflicting evidence) can lead to arrest.

Sure, you may "win" in front of a judge eventually but this is after you get
handcuffed, spend the night in jail, have an arrest on your record, etc. Not
to mention having your mugshot posted online by various unscrupulous sites
running an extortion racket (demanding payment to remove). You'll soon
discover that to many people simply being arrested = guilty.

In my case my "win" came 14 months later when the judge watched the dashcam
footage, saw that my driving, speech, behavior, etc clearly wasn't impaired
and threw the case out. Total time in court was less than 20 minutes.

Interestingly we watched the dash cam footage after the officer testified. At
one point my attorney asked why the officer thought I was impaired. He
responded with "I'm Irish Catholic and I know what drunk people look like".
The entire courtroom (myself included) laughed.

~~~
craftyguy
> He responded with "I'm Irish Catholic and I know what drunk people look
> like".

Perhaps the officer was impaired.

------
lisper
I drink and drive all the time, which is to say, I will drive to a restaurant,
enjoy dinner and drinks, wait, and then drive home.

In order to be sure that I've waited long enough to be safe, I bought a
BACtrack S35 breathalyzer to keep in my car. In many, many years of testing
myself, I have never seen a reading above 0.03, at which point I feel pretty
impaired. If I'm over 0.02, I don't drive. I don't think I could stay
conscious long enough to get myself up to the 0.08 legal limit.

All of which makes me wonder: can I trust this gadget to be properly
calibrated? And how would I find out? The only way I can think of is to
approach a police officer while drunk and ask them to breahalyze me so I can
compare readings. Somehow, the opportunity to do that has never arisen.

It seems to me like a no-brainer that any establishment that serves alcohol
ought to be required by law to have a properly calibrated breathalyzer on the
premises for its customers to use. But of course this won't happen because the
truth is we don't really want to know. We have drunk-driving theatre just like
we have security theatre, and both seem to be a stable equilibrium.

Alas.

~~~
supergeek133
BACTrac actually recommends you send it to them on a regular basis for
calibration

~~~
lisper
Sure. But the results I get today are consistent with the ones I got when the
unit was brand new. In fact, it's so consistent I can predict with very high
accuracy what my reading will be just based on how much I've had to drink and
how I feel. So if the unit is inaccurate now, it was inaccurate when it was
new.

Also, we have two units, one in my car, one in my wife's car. I've tested
myself back-to-back with both units (at home) several times and the readings
are always consistent.

~~~
supergeek133
Yeah fair (and that's awesome, I think mine went out of calibration after like
a year)... but like I said in another comment. If devices are inconsistent it
doesn't really matter.

------
APCarr
I use a cheap breath tester to see if I'm in ketosis when losing weight
(burning fat creates ketones, which trigger breath tests).

Jus' sayin'.

~~~
2RTZZSro
You should be skeptical of the output of a ketone measurement device. You need
to measure blood concentration of beta-hydroxybutyrate to accurately determine
your ketosis situation.

------
rascul
The biggest flaw is that it doesn't actually measure drunkenness or
impairment.

~~~
lttlrck
You'd still need to be stopped, which would still take an officer observing
erratic behaviour, and he'd still make you walk in a straight line and ask you
questions to check if you are slurring your speech. And then you'd still need
to be tested to see if you are over the legal limit.

So maybe you mean that the law shouldn't be based on BAC?

~~~
rascul
With stronger reckless driving laws then we can get rid of DUI and cell phone
laws. If you're driving recklessly and putting other people in danger, it
shouldn't matter how you got there. Drinking, prescription drugs, lack of
sleep, cell phone usage, eating, reading, and watching the coast as you drive
by are all examples of things that can have equally bad results. Yet we focus
almost completely on convicting people based on some arbitrary measurement and
sobriety tests designed to make you fail. We should instead convict people
based on endangering others.

~~~
dpark
Agree but reckless driving is subjective and harder to define which is why we
have specific laws that are so concrete.

edit: subjective, not objective :\

~~~
rascul
I think you mean subjective, not objective? I do think reckless driving laws
need to be modified, also. Here's an example, from Mississippi [1]:

> Any person who drives any vehicle in such a manner as to indicate either a
> wilful or a wanton disregard for the safety of persons or property is guilty
> of reckless driving. Reckless driving shall be considered a greater offense
> than careless driving.

> Every person convicted of reckless driving shall be punished upon a first
> conviction by a fine of not less than Five Dollars ($ 5.00) nor more than
> One Hundred Dollars ($ 100.00), and on a second or subsequent conviction he
> may be punished by imprisonment for not more than ten (10) days or by a fine
> of not exceeding Five Hundred Dollars ($ 500.00), or by both.

The way it's defined does seem a bit subjective. I'm sure this can be
addressed, but at least in this example, it's not immediately clear to me how
it can be improved. I would probably get some ideas by looking at other
states. The penalties, however, could absolutely be increased. In comparison,
the punishment for a first offense DUI [2]:

> (a) First offense DUI.

> (i) Upon conviction of any person for the first offense of violating
> subsection (1) of this section where chemical tests under Section 63-11-5
> were given, or where chemical test results are not available, the person
> shall be fined not less than Two Hundred Fifty Dollars ($ 250.00) nor more
> than One Thousand Dollars ($ 1,000.00), or imprisoned for not more than
> forty-eight (48) hours in jail, or both; the court shall order the person to
> attend and complete an alcohol safety education program as provided in
> Section 63-11-32 within six (6) months of sentencing. The court may
> substitute attendance at a victim impact panel instead of forty-eight (48)
> hours in jail.

> (ii) Suspension of commercial driving privileges is governed by Section
> 63-1-216.

> (iii) A qualifying first offense may be nonadjudicated by the court under
> subsection (14) of this section. The holder of a commercial driver's license
> or a commercial learning permit at the time of the offense is ineligible for
> nonadjudication.

> (iv) Eligibility for an interlock-restricted license is governed by Section
> 63-11-31 and suspension of regular driving privileges is governed by Section
> 63-11-23.

The penalties are much more, though the end result of the illegal act itself
are the same. The only difference is that you drank a couple beers instead of
taking your prescription medications. I picked Mississippi simply because I
live here currently, but it's similar with all the states I've looked at.

[1]
[https://law.justia.com/codes/mississippi/2013/title-63/chapt...](https://law.justia.com/codes/mississippi/2013/title-63/chapter-3/article-25/section-63-3-1201)
[2]
[https://law.justia.com/codes/mississippi/2017/title-63/chapt...](https://law.justia.com/codes/mississippi/2017/title-63/chapter-11/section-63-11-30/)

~~~
dpark
Yes, I meant subjective. :\ I don't believe it's possible to define reckless
driving objectively. Does crossing across a double-yellow line constitute
reckless driving? What if you're doing it to avoid a deer? Or a pothole? Or at
very low speed? What if you do it at the speed limit and there's no
obstruction and there is heavy traffic, but a child in your car is choking and
you're look back at them to make sure they're okay?

There are too many things that could be considered reckless and even more
things that could be extenuating. The penalty for reckless driving could
certainly be higher, though, since it's defined as willful or wanton
disregard.

The DUI law you cited already covers prescription drugs, by the way. _" Is
under the influence of any other substance that has impaired the person's
ability to operate a motor vehicle;"_

~~~
rascul
Your point about the subjectiveness is well noted, I hadn't much considered it
before.

You are correct in that the DUI law covers prescription drugs. I hadn't
noticed that until you pointed it out. It's rare though, from what I see, for
a DUI case to be about anything other than BAC. I have no actual statistics on
that.

I guess in my earlier comment the prescription drug part can be replaced by
using a cell phone.

~~~
dpark
> _It 's rare though, from what I see, for a DUI case to be about anything
> other than BAC. I have no actual statistics on that._

That's because BAC is easy to measure. If you want to prosecute for BAC, you
just need trusted test results. If you want to prosecute for impaired driving
in general, you need to prove actual impairment, which is tough. This is why
MADD campaigned for the .08 limit nationwide. It's easy to enforce.

------
sli
There is at least one model where, if the officer covers the outlet tube, the
reading doubles extremely reliably. I saw this tested in a short documentary
some years back.

If you're going to get breathalyzed, will you notice if the officer is doing
something shady? Could you even know, without knowledge of the various
machines?

I'm also quite miffed that a cop can give you a DUI even if your reported (by
the machine) BAC is under the legal limit, 0.00 included.

------
DrScump
Years ago, on "L.A. Law", a story arc had one of the lawyers stopped for
weaving. His partner advised him, "breath or unine -- _not blood!_ ". This was
in CA, which gives the driver his/her choice of the three methods.

Are there cases where blood disfavors the suspect?

------
dsfyu404ed
This is news to exactly nobody who ever read the manufacturer specs of the
sensors used in devices that detect alcohol for law enforcement.

They're running industrial process control sensors at the limits of their
range and in widely changing environment. It should come as no surprise that
they're hard to calibrate accurately and likewise deliver variable results in
a lot of cases

In a factory environment equipment doesn't get calibrated in a 70deg car and
used in 20deg winter air to measure 90deg human breath. In law enforcement
that's exactly what happens.

Ankle bracelets are even worse.

The fact of the matter is that most hardware/software solutions sold to law
enforcement are only a small step above the scam bomb-detectors that got sold
to the Iraq government (Google it if you're unfamiliar with the story).

If NASA were writing the calibration code, the results weren't being
interpreted by laymen and their interpretation wasn't being used to destroy
lives I'd feel differently.

------
arbuge
This is not really news. For example in Texas, DWI lawyers run a lucrative
racket combating breathalyzer test results using the known flaws in the
machine and its application. Blood tests are considered more definitive and
harder to defend against.

~~~
pavel_lishin
Why is it a racket?

------
kevin_thibedeau
Why would it even be possible to disable sensors critical to getting a
credible estimate of blood alcohol? It all sounds like a convenient way to
boost revenue with false positives while hiding behind the techno-wizardry.

