Attorneys in the state of Washington are currently putting on evidence to convince a court that the agency in charge of the breath testing program in that state should determine and report the level of “uncertainty” with respect to breath test results. Uncertainty in a breath test result is also sometimes referred to as the “margin of error”. You can read about the Washington case here. This is not an idle exercise. As I have blogged about before, the National Academies of Sciences, our nation’s most esteemed scientific institution, recently released a report documenting the deplorable quality of the work being performed in state forensic laboratories across the nation and recommending a complete overhaul of the way forensic work is performed by the government. The NAS recommends that scientific results be accompanied by an “uncertainty budget” that lays out the degree of uncertainty, or doubt, that there is in the accuracy of a given forensic result.
I have reported on forensic lab problems repeatedly on this blog. For instance, recent news in Colorado Springs is that hundreds of breath tests going back to 2007 are now in doubt since it has been determined that lab errors caused blood tests to be inflated by up to 40%. A lot of people got convicted and likely sent to jail based on those faulty tests. The scary thing is that they still have no idea what the problem was or whether it has been fixed! But, the lab is still up and running and reporting forensic test results.
A breath test result is just a number without any meaning unless you have some idea how accurate it is. That is why determining and reporting the margin of error on the tests is so important. Most states require that the person who has been arrested for DUI be given 2 breath tests, and that the two results be within a certain range of one another. So, in those states, at least there is a second test to confirm the first. Kansas DUI law only requires one single breath test. There is not a second test to corroborate the results of the first test. There is no credible scientist in the world that will tell you that a single test result has any scientific value. This is particularly true if the level of certainty for that single test is completely unknown. Until breath tests in Kansas DUI cases are also reported with the level of uncertainty of the breath test number, and until Kansas DUI laws require more than one test result be measured and be in agreement with one another, we can have zero confidence in the science surrounding these Kansas DUI cases and zero confidence in the jail sentences and Kansas driver’s license suspensions that are currently ruining people’s lives. Remember, if it is your first DUI and you have never been in trouble with the law once in your life and you blow a .150, you lose your driver’s license for one year (followed by a year of interlock device). There is no hardship license available. There is no driving to and from work. There is no driving your kids to school or activities. If you blow a .149, one-thousandth of a gram less, the suspension is only 30 days. You cannot tell me that the margin of error is not important. We are talking about microscopic forensic differences that cause monumental real-life differences.