The New York Times | By Stacy Cowley and Jessica Silver-Greenberg
November 3, 2019
A million Americans a year are arrested for drunken driving, and most stops begin the same way: flashing blue lights in the rearview mirror, then a battery of tests that might include standing on one foot or reciting the alphabet.
What matters most, though, happens next. By the side of the road or at the police station, the drivers blow into a miniature science lab that estimates the concentration of alcohol in their blood. If the level is 0.08 or higher, they are all but certain to be convicted of a crime.
But those tests — a bedrock of the criminal justice system — are often unreliable, a New York Times investigation found. The devices, found in virtually every police station in America, generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place.
Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight. Across the country, thousands of other tests also have been invalidated in recent years.
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.
Technical experts have found serious programming mistakes in the machines’ software. States have picked devices that their own experts didn’t trust and have disabled safeguards meant to ensure the tests’ accuracy.
The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.
A county judge in Pennsylvania called it “extremely questionable”whether any of his state’s breath tests could withstand serious scrutiny. In response, local prosecutors stopped using them. In Florida, a panel of judges described their state’s instrument as a “magic black box” with “significant and continued anomalies.”
Even some industry veterans say the machines should not be de facto arbiters of guilt. “The tests were never meant to be used that way,” said John Fusco, who ran National Patent Analytical Systems, a maker of breath-testing devices.
Yet the tests have become all but unavoidable. Every state punishes drivers who refuse to take one when ordered by a police officer.
The consequences of the legal system’s reliance on these tests are far-reaching. People are wrongfully convicted based on dubious evidence. Hundreds were never notified that their cases were built on faulty tests.
And when flaws are discovered, the solution has been to discard the results — letting potentially dangerous drivers off the hook.
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Carime Lightner, 13, was walking to a church carnival in Fair Oaks, Calif., when a drunken driver slammed into her so hard she was knocked out of her shoes. The man had been arrested repeatedly for intoxicated driving.
Carime’s mother started Mothers Against Drunk Driving and launched one of the most effective citizen lobbying campaigns in history. States set stiffer penalties, including mandatory jail time in some cases, and made it illegal to drive with a blood-alcohol level above a designated mark.
The crackdown worked. In 1982, the year the National Highway Traffic Safety Administration began keeping records, some 21,000 people were killed in drunken-driving incidents. The number of deaths tumbled to around 10,500 in the most recent annual tally, even as the number of miles driven by Americans has nearly doubled.
In most of the country, the threshold for illegal drunkenness is 0.08 grams of alcohol per 100 milliliters of blood. The only way to measure that directly is to draw blood, which requires a warrant. Breath tests are simpler.
Testing machines can go for $10,000 or more, and some two dozen companies sell them in the United States. The biggest contracts, with state police crime labs, are worth millions.
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Breath-testing machines need less than a minute to run their calculations. What happens during those 60 seconds, though, has been the subject of years of courtroom fights.
Defense lawyers have repeatedly tried to forensically examine the machines, especially their software. Inspecting the code could reveal any built-in flaws or assumptions the devices use in their calculations.
But even procuring a machine is a challenge. Manufacturers won’t sell them to the public.
Jan Semenoff, a former police officer who works with defense lawyers, was once a CMI salesman and had a machine left over from those days. When he sent it in for a repair, CMI wiped the machine’s memory chip. “They turned the damn thing into a paperweight,” Mr. Semenoff said.
Courts in at least six states, including New York, have rebuffed defense lawyers’ attempts to get their hands on the machines’ code.
But in 2007, the New Jersey Supreme Court granted a request by defense lawyers and ordered Dräger to allow outside experts to analyze the software for the Alcotest 7110 machines in use statewide. The experts said it was littered with “thousands of programming errors,” according to their report to the court.
After reviewing the evidence, the court deemed the Alcotest 7110 “generally scientifically reliable.” But the state court also acknowledged the devices had “mechanical and technical shortcomings” that had the potential to produce the wrong result. Dräger said it quickly fixed the problems, but the state never rolled out the software update, court records show. Dräger now advertises the 7110 as the only device on the market whose software “has been reviewed by independent third parties and approved by a Supreme Court decision.”
None of that made a difference in other states, which employ a variety of machines and standards. Each state decides how rigorously it will test machines, and several have used devices that were deemed unreliable elsewhere.
In 2005, for example, Vermont’s toxicology lab scrutinized machines from four manufacturers. The lab rated CMI’s Intoxilyzer 8000 as “unsatisfactory” and found that it gave inaccurate results on “almost every test,” according to a lab technician’s report.
But the same device was already being used in Mississippi, and it would soon be deployed by other states, including Ohio and Oregon.
Florida, too, adopted the Intoxilyzer 8000, even after a test machine short-circuited and started to smoke, state records show.
When the state began setting up its new devices, technicians found they were returning inaccurately low results, according to court testimony. A CMI engineer diagnosed a problem with airflow, and he drilled a small hole in the exhaust valve to solve it.
The fix worked. CMI started boring holes in all the devices it sent to police departments in Florida, court records show.
When defense lawyers discovered the undisclosed change, they challenged its legality. The Collier County judge who heard the case in 2012 said he was “extremely concerned” about the modifications.
“A criminal defendant should not face conviction and possible incarceration based on secret undisclosed evidence,” he wrote in his ruling. Ultimately, that case and others led several Florida judges to stop allowing breath tests to be used in their courtrooms.
Defense lawyers in state courts across the country have sought to learn more about the devices being used to convict their clients.
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And recognition of the tests’ problems is spreading.
In Minnesota, a judge ruled last year that the state’s machines appeared to be rounding up results, falsely nudging some defendants over the legal limit. (A spokeswoman for the state’s testing program said the judge misunderstood the technology.)
In Washington State, where Dräger sent its cease-and-desist letter, D.U.I. lawyers are trying to consolidate a group of cases to challenge the reliability of the state’s machines.
And in courts around the country — including one last year in Queens County, N.Y. — judges continue to toss out individual cases when questions arise about the tests’ accuracy.
“If we are going to put people in jail and punish people, take their liberties away, take their licenses away, we have an obligation to be accurate,” said Joseph Bernard, the defense lawyer who helped Mr. Mottor get a new trial and is representing dozens of others in Massachusetts.
But there is a cost. Throwing out tens of thousands of faulty breath tests will inevitably let some dangerous drivers back on the road.
“Let’s not fool each other,” Mr. Bernard said. “I am not going to sit here and tell you that situation and that dynamic isn’t going to happen. Of course it’s going to happen. The question is, whose fault is it?”