The San Francisco Chronicle has an article today about 500 to 1000 DUI convictions which may be overturned and tossed out because the police were not performing the required calibration checks on the breath testing machines in ensure that they were working properly. The police officers were just writing in the same number over and over for the “results” of calibration checks which were not actually being performed. It also turns out that the gas which was supposed to be used to test the accuracy of the machines expired in 2010 so was not longer good anyway. The police and prosecutors say that this was simple “negligence”. However, not doing a required calibration check and writing in a number that you know is not true to make it look like you did is not negligence. It is deliberate and intentional fraud.
This issue only came to light in San Francisco because DUI defense attorneys demanded to see all of the calibration records on the machines and noticed irregularities. A quality Kansas DUI lawyer will request copies of all of the maintenance logs, calibration logs and testing logs for any machine upon which a client’s breath was tested. That paperwork must be reviewed with a fine-toothed comb. Instances of irregularities or misconduct with respect to these machines may not be common, but it does happen. You won’t know unless you look. The powers that be in Kansas have tried to limit the requirements for breath test machine maintenance recently and to reduce the amount of paperwork that is generated in order to reduce the opportunities for people accused of a Kansas DUI to find these kinds of issues. Good science usually demands transparency and open books. But then good science requires a lot of things you won’t find in the Kansas breath testing program.