On November 3, 2019, the New York Times published an article in its Sunday edition that was the culmination of many months of research by its writers. The gist of the article, which you can read here, was that breath test machines are not always accurate and cannot be trusted to determine whether someone is innocent or guilty of a DUI. From the article:
The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.
The article details cases throughout the country in which thousands of breath tests have been thrown out or the results called into question. The article discusses the Intoxilyzer 9000 which is the breath test machine used exclusively in Kansas DUI cases. In Washington, D.C., it was discovered that their Intoxilyzer machines had been reporting breath tests that were falsely inflated by 20 to 40 percent. The problem with machine creating falsely high breath tests had been going on for years and no one knew it. The article also talks about a problem with the accuracy of Intoxilyzer machines in Florida which was “fixed” by some guy drilling a hole into the breath test tube of all of the machines.
In Kansas, the DUI breath testing program is run by the Kansas Department of Health and Environment. They are essentially an arm of law enforcement. They have gone to great lengths to water down the requirements for certifying breath test machines, for calibrating and checking the calibration of the machines, and for overseeing the breath testing programs of the individual police departments which use the Intoxilyzer in DUI investigations. In Kansas, only one single breath test is required. Anyone who has ever been to the doctor, or has a passing familiarity with science, can tell you that one solitary test result is not good science. A second test is required to confirm the results of the first. But, that one single test puts people in jail in Kansas every day. Many states require two tests that agree with each other before a breath test result can be considered.
It is good to see journalists looking into this issue. Most people assume that the breath test machine is accurate, but you only need to pull back the curtain a little to see that what you thought was an all-powerful wizard is not so infallible. Every breath test result should be reviewed closely by an attorney, and all of the maintenance, calibration and testing records for the machine should be obtained. It has only been through the tireless efforts of DUI defense attorneys that these issues with the accuracy of the machines has come to light.