DUI testing is fallible: What you need to know

So you’ve been stopped for suspicion of driving under the influence, you’ve received a breath alcohol test and you’re told you’ve blown above the legal limit.

You don’t believe the the results, but the technology can’t be wrong … right?

Not necessarily.

The Draeger 9510 is the most commonly used breath alcohol instrument in Washington DUI investigations, analyzing breath to help police estimate the level of alcohol in a person’s blood, explains lawyer Ziad Youssef, of MyTrafficMan.net.

Most states have laws that set the legal limit for breath alcohol at .08, meaning anyone who blows a .08 is automatically assumed to be driving under the influence. However, that assumption has to be proven beyond a reasonable doubt.

Here’s where questions with the technology come in.

Lawyers in New Jersey and Illinois have sued the manufacturer of Draeger’s Alcotest 7110 DUI breath test machine for faulty products, with a “class action lawsuit alleging that Draeger Safety Diagnostics Inc. manufactured a defective blood alcohol testing device asked the U.S. Supreme Court to hear their case.”

In another suit involving health monitoring equipment, “executives from the company told the hospital that Draeger’s technology ‘could be configured to provide accurate and clinically useful patient monitoring and alarming.’ Instead, the hospital said it spent the next several years grappling with ‘inaccurate and unreliable alarming, erratic shifts in alarm settings, and sudden erasures of patient log data.’”

As law enforcement works to assess drivers believed to be under the influence of cannabis, Canadian lawyers and law enforcement have raised many concerns with the Draeger DrugTest 5000, approved in that country to test through saliva whether drivers are under the influence of THC and other drugs.

Here in Washington State, the Draeger 9510 runs on software that the state has yet to properly validate. Software controls the data when the instrument is used to collect and test a breath alcohol sample. The instrument plots a graph of the breath result data for the officer and displays it on the built-in screen. Very specific criteria must be used to ensure a valid test, and any dip in results followed by a sharp rise indicates an invalid result, and the jury would have plenty of reason to doubt the breath result based on this data.

Since the driver bears the burden of challenging the weight of a breath test result after it’s been admitted into evidence, presenting evidence of an invalid test is critical to success. And although the burden remains on the prosecution to prove the test is reliably over the limit, it’s equally important to present the graph(s) to a jury to create reasonable doubt.

“I recommend asking for a jury instruction on what an invalid test is, so the jury can consider the rule on an invalid test,” Youssef says. “Even if it’s not allowed, I recommend talking to the jury about what a valid test requires and questioning the toxicologist or Draeger technician about the technical manual and its requirements.”

Questions about your DUI or if there may be challenges with your breath test? Visit mytrafficman.net or call 360-734-0908.

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Focusing on DUI, MyTrafficMan’s lawyers serve clients in Bellingham, Bellevue, Ellensberg and Vancouver, WA as part of a broad network of legal resources. Learn more at mytrafficman.net or on Facebook.

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