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Arrested for a DUI in Ventura County? What to Expect...

Why DUI Breath Tests Cannot Be Trusted

Posted by Jarrod M. Wilfert | Nov 19, 2019 | 0 Comments

After a DUI arrest in California, the police will ask a suspected drunk driver to take an alcohol breath test to determine his/her blood alcohol content (BAC). If a person's BAC level is at least .08 percent, he/she will be charged with drunk driving.

But how reliable are these post-arrest breath tests? According to an investigation conducted by The New York Times, you cannot trust them.

After interviewing more than 100 police officers, lawyers, scientists, and executives and reviewing tens of thousands of pages of court records, e-mails, contracts, and corporate filings, the breath devices used by law enforcement officials throughout the country often produced inaccurate results. Over the past year, judges in New Jersey and Massachusetts have dismissed more than 30,000 cases due to skewed breath test results.

The following are several reasons why you can't trust DUI breath tests:

Human Error

In one example, before Colorado police departments received over 160 new Intoxilyzer 9000s, the state forensic lab was rushing to meet is the deadline to get them ready for use. However, each of these devices had to be calibrated, which can take over an hour for each machine.

A lab technician admitted that the lab records that showed that the calibration of machines—that had never been touched before—were fabricated. In addition, the lab's supervisor asked a sales manager, an intern, and a CMI lawyer to help certify these devices, even though these individuals had never taken apart equipment before.

In another case, Ilmar Paegle was hired to oversee the Metropolitan Police Department's breath-testing program. When he tested the Intoxilyzers, he discovered each machine produced results that were 20 percent to 40 percent higher than they should be. Upon further research, he learned that his predecessor, Kelvin King, who spent 14 years running the program, had continuously entered the wrong data that miscalibrated the devices.

Lack of Oversight

Three years after a man in Massachusetts was arrested for DUI in Massachusetts, the state's Supreme Court ruled that his defense lawyers were allowed to assess two Alcotest machines with the help of experts. Not only did they find mistakes within the machines themselves, but the state forensic lab who used these machines failed to establish a written procedure to set up and test them, failing to follow scientifically sound instructions. Furthermore, the lab had hidden hundreds of records containing failed calibrations from public view.

Programming Problems

New Jersey's highest court allowed defense attorneys and experts to analyze the Alcotest 7110 machine's software in 2017. As a result, not only did the experts say that the machines contained “thousands of programming errors,” but the court also said they had technical and mechanical shortcomings that created the possibility of generating inaccurate results.

If you have been arrested for a DUI in Ventura, our legal team at Wilfert Law P.C. can challenge your breath test results to determine if the law enforcement department failed to properly calibrate and maintain its machines. If that is the case, we can file a motion to suppress the breath test results, so they won't be used against you in court. Without key evidence indicating your guilt, it is possible your case could be dismissed.

For more information about DUI and breath tests, contact us at (805) 994-0560 today.

About the Author

Jarrod M. Wilfert

Founding Attorney A Reputation of Excellence Jarrod M. Wilfert has been involved in criminal law for over a decade and as a former Police Officer, Prosecutor and certified Drug Recognition Expert, he brings a unique and aggressive perspective to the practice of criminal defense and civil litig...


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