Taimoor Rana is seasoned criminal defense attorney specializing in DUI related cases. He shares his expert legal opinion here « Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?
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- If you are facing drunk driving charges, then you must have taken (unless that you refuse) a chemical test for checking a blood alcohol concentration (BAC). It has been noted that the test will be done with a breath machine in the great majority of cases. When you face the trial in a court then you will come to know that you have been charged with not just one, but with two crimes.
First Charge:
The first crime with which you have been charged is the so-called "per se" offense: driving while having a BAC of .08% or greater. It doesn’t matter and no one actually cares whether you were intoxicated or not. It would be proved by all of the evidence that without question you were sober: your condition is not the crime, instead of that the crime is your chemical composition. And what is the sole source of evidence used by the police officers upon which you will be either convicted or acquitted? Just a machine.
Second Charge:
The second charge that you have to face is "driving under the influence of alcohol" ("DUI"), or in some states, it is referred to as "driving while intoxicated" ("DWI") or "operating under the influence" ("OUI"). All of them are basically the same thing. However in each case, it can be proved by the prosecution that you were under the influence of alcohol by offering the results of the same breath test into evidence and the jury will be instructed that it should be refutably believed that the defendant is guilty unless he can prove otherwise.
Yes that’s right: a presumption of guilt. And on what it is based upon? Again, a machine. So all of it comes down to a machine. You are innocent or you are guilt that depends largely if not entirely upon what is elaborated by a machine. Now I think we should take a closer look at this "breath machine"….
Sometimes they are generically known "Breathalyzers" after the original Breathalyzer 900, nowadays there are several number of makes and models that are manufactured by different companies. For many years, the most popular among all of these has been the "Intoxilyer 5000", that has been manufactured by CMI, Inc. How reliable is this machine at measuring alcohol in a person’s blood by simply measuring his breath? How accurately it measures?
Well, let us see what do the manufacturers think about its reliability? How confidant they are that these devices are reliable enough that on the basis of their result a man could be send to jail? Let us take a look at their warranty given by manufacturer. The paragraph below is from their manual’s "Statement of Warranty":
"CMI, Inc., a subsidiary of MPD, Inc., warrants that under normal use and service, each new product will be free from defects in material and workmanship,for a period of one year from the date of delivery to the first user-purchaser…."
Just one year? These breath machines are warranted only for one year? We can commonly find Model 5000s in service at law enforcement agencies for ten years or more. What if there’s a problem with the machine that requires a repair by the manufacturer?
"For a period of 90 days repaired components are warranted from the date of repair."
90 days only? The toaster that I am having in my kitchen has a better warranty. But the "warranty" continues:
"No other warranties are expressed or implied here, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose…."
Now what’s that? CMI, Inc., says that this machine that determines a person’s guilt or innocence is not warranted for any "particular purpose" — which, for the Intoxilyzer 5000, is measuring alcohol on the breath. So the company does not give any guarantee that it will measure breath alcohol? And for this machine, it is said by the law, that it is "proof beyond a reasonable doubt"?
Ok, now let us discuss another of these machines by which guilt or innocence is determined: the BAC DataMaster, that is manufactured by National Patent Analytical Sytems, Inc. Their warranty, at least last for two years but they also refuse to guarantee that the thing measures breath alcohol:
“No other warranties are expressed or implied here, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose…."
And, as with CMI, Inc., they have added another warning and that is "In no event shall National Patent Analytical Systems be liable for any loss of profit or any indirect or consequential damages that arise due to any such defect in material or workmanship". Explaining this in other words, if because of defects in our machines you end up going to jail, you can’t sue the company.
Here the simple fact is that, perhaps for the first time in our history, we are convicting people of crimes — beyond a reasonable doubt and that is based entirely upon what a machine says. Are we that much sure of the machine’s accuracy? Are the manufacturers of those machines can give any surety?
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