New York Criminal Attorney Blog
Experienced DWI attorneys understand the potential errors associated with breath test machines even when calibrated and functioning properly. However, recently a New Jersey State Police Sergeant assigned as a coordinator in the Alcohol Drug Testing unit has been arrested for skipping a step in the recalibration of breath test machines and falsifying records to certify that he performed the required check. Specifically, the Sergeant is alleged to have skipped the temperature check while re-calibrating the machines and then falsely certifying that he performed the check. The Sergeant was responsible for calibrating breathalyzers in Middlesex, Ocean, Monmouth, Union and Somerset counties over a period of seven years and State officials have identified well over 20,000 DWI cases that could be affected by this arrest. This arrest comes on the heels of a Police lab technician having been accused of faking a test in a Marijuana case last December. That disclosure put into question almost 15,ooo cases.
The issue with breath tests is even more acute than drug cases because generally the police do keep the drugs that were tested for a period of time even after a conviction and so those drugs are available to be retested. However, when you give a breath sample, no part of the sample is maintained for retesting and therefore the momentary reading from the breath machine plays a crucial part in the case. In addition, in most drug cases the issue is the presence or absence of a controlled substance and the total weight of the substance. The concentration of the controlled substance in the sample does not matter. In DWI cases, however, small differences in the percentage of alcohol detected in a breath sample can have a huge impact on the outcome of a case and can in fact impact whether charges are brought or not.
The issue of calibration goes to the heart of the accuracy of these devices and goes to the heart of the accuracy of what is often the key evidence in DWI cases. For example, body temperature can affect the breath reading and as experienced DWI lawyers understand a person with a fever can have an artificially high read on a breath test. Therefore, of course, the temperature of the simulation solution during a re-calibration can be critical. The problem is compounded by the substantial weight given to the results of these machines by prosecutors, courts and even jurors and at the same time manufacturers of breath machines attempt to keep the inner workings of these machines a secret, treating the inner workings of the machine as a trade secret.
It is also important to remember that while state law speaks in terms of blood-alcohol content, the police rarely test your blood and rather generally test your breath. The breath machine then, using certain assumptions about you, calculates based upon the amount of alcohol in your breath what the machine estimates is your blood alcohol content.
Although, the case involving this Sergeant represents a fairly isolated incident it still has affected more than 20,000 cases. The question is whether there are other police officers or supervisors out there who are taking similar short cuts and whether this was an isolated incident or a more widespread problem.
DWI cases are complicated. They require attorneys with experience in DWI cases who not only understand the law but the science surrounding how a human body metabolizes alcohol and how the police test for that alcohol in your body.