I have blogged before about the scandal in Washington, D.C., where it was recently discovered that the Intoxilyzer 5000 machines in that jurisdiction had not been tested for accuracy for “a couple of decades” or more and, in fact, were calibrated to report breath tests 20% higher than they really were, sending “hundreds” of people to jail ( I would bet “hundreds” is a conservative estimate by the government).
The whistle-blower who discovered and reported this travesty was a man named Ilmar Paegle, who had been hired to overhaul the breath testing program in D.C. He said recently,
“On my second day at work last year, I walked into the office and started poking around into the equipment and the files and discovered that the instruments had been misprogrammed to over report breath alcohol tests by approximately 20 percent”.
There is mandatory jail time required in D.C. for people who “blow” over certain limits. Again, hundreds of people went to jail when they shouldn’t have because they machine was intentionally misprogrammed to read high. If that was not bad enough, 3 D.C. police officers have claimed that they were told by prosecutors not to answer questions about this issue under oath and/or to lie.
“They told them to misrepresent their knowledge about the problems with our DUI program, they asked them not to provide facts if asked about those facts to the defense attorneys or the judges…”. The story is here. It is amazing the lengths that some people will go to just to try to get DUI convictions against people that they know are innocent.
I guess it should come as no surprise, though. The inmates are now clearly running the asylum. Consider this story from Florida: A man named Roger A. Festa, a successful businessman and war hero, was driving in an unfamiliar location trying to find a place to eat with his wife. He had consumed one drink earlier. A police officer pulled him over, gave him the “Field Sobriety Tests” (which he apparently failed), and took Mr. Festa to the police department for a breath test. He blew a .03, WAY under the legal limit.
You would think that he would have been released with the officer’s apologies for his mistake. But, the officer decided to be judge, jury and executioner and locked Mr. Festa up in jail for the night. The officer later testified at the lawsuit against him by Mr. Festa:
“Basically, once you were arrested for DUI, I made a determination from the conversations that we had between there and at the jail that I was going to have this pled down to a reckless driving and then the reckless driving to a [nolle prosequi] so you would suffer no monetary damages or a record,” Burgett said.
Charging decisions, plea bargaining and penalties are supposed to be up to the prosecutor and eventually the court, not the police officer. But, this officer decided what the crime was and what the punishment would be. However, instead of cutting the deal the officer dreamt up, Festa pleaded not guilty to both charges and told the prosecutor to prove the case. Both the DUI and reckless driving charges were eventually dropped. Festa sued for his wrongful imprisonment, but the federal appeals panel decided that there was nothing wrong with imprisoning a man for 11 hours even though he clearly had not broken the law.
From the story, “Festa died on May 9, 2010 while waiting for the case to be resolved. Festa was a successful businessman who earned a silver and bronze star during his service in Vietnam as an Army Ranger.” Thank God for people like Roger A. Festa who defend our country and have the temerity to defend themselves against an overbearing government.
Each year our law firm defends people who are arrested for a Kansas DUI even though their breath, blood or urine test comes back well under the legal limit. There are lawyers that will put people on diversion or plead them guilty even though they blow under a .08. Just like Mr. Festa, a person can blow a .03, .05, .07 and find themselves put in jail and charged with a Kansas DUI. The prosecutors don’t want to let these go, so you have to fight them and take them to trial.
Both of these stories illustrate that the number spit out of the box is an illusion. There is no reason to believe that breath test results are reliable, and even if you pass it you may still find yourself in jail and having to fight a DUI charge.