New doubts cast on a key safety tool: police roadside alcohol-testing devices

cdcalcoholdriving-300x141Although drunk drivers inflict terrible carnage on others traveling on the nation’s streets and highways, law enforcement agencies and skeevy device makers may be unwinding the trust in what has become a cornerstone of the nation’s safety regimes: roadside alcohol testing machines.

The New York Times reported that it “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” to discover “the depth of a nationwide problem that has attracted only sporadic attention.”

As the newspaper noted of roadside “breathalyzer” exams and devices used for them:

“[T]hose tests — a bedrock of the criminal justice system — are often unreliable … 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 … The machines are sensitive scientific instruments, and in many cases, they haven’t been properly calibrated, yielding results that were at times 40% 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.”

This is a big problem, because drunk driving is a national nightmare, as the federal Centers for Disease Control and Prevention separately has reported:

“Every day, 29 people in the United States die in motor vehicle crashes that involve an alcohol-impaired driver. This is one death every 50 minutes. The annual cost of alcohol-related crashes totals more than $44 billion. In 2016, 10,497 people died in alcohol-impaired driving crashes, accounting for 28% of all traffic-related deaths in the United States. Of the 1,233 traffic deaths among children ages 0 to 14 years in 2016, 214 (17%) involved an alcohol-impaired driver. In 2016, more than 1 million drivers were arrested for driving under the influence of alcohol or narcotics. That’s 1% of the 111 million self-reported episodes of alcohol-impaired driving among U.S. adults each year.”

The New York Times investigation found that police are ill-equipped to service, maintain, and judge the accuracy and dependability of roadside alcohol testing devices. They’re used 24-7 in all kinds of weather and temperatures and other unpredictable conditions.

To protect their intellectual property and the market for their highly profitable products, makers of the sobriety testing tools have turned their devices into magical black boxes. The makers have fought tooth and nail attempts not only by motorist-defendants but also by law enforcement agencies to gain information about the software and hardware in breath analyzers. This has meant that it is difficult to contest their results. It also means that it is an ordeal for officials spending big taxpayer money to learn comparative advantages of different machines, much less if they work and makers keep them current. In one case, a law enforcement agency and maker agreed that system problems were serious enough to require a software upgrade. But because officials lacked a way to look into the guts of their system to see if the promised work ever got done.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can inflicted on them and their loved ones by car, motorcycle, and truck wrecks — too many of them tied to intoxication, distraction (don’t text, please!), drowsiness, and other preventable causes. My partners and I also see the havoc that results from dangerous and defective products, which inaccurate or false alcohol testing devices just might be.

If, as the New York Times investigation shows, lives must be upended, based on the findings of device, fairness requires that authorities must show in transparent fashion that wrongdoing occurred. Justice can’t let techy technology sway what happens to the innocent or guilty, no matter how much common sense cries out of motorists flouting the law to be punished.

Device makers should be allowed appropriate profit, but not at the cost of police, in effect, telling taxpayers and the accused, “Just trust us on the information we’ve got.” If breath testing devices are critical to highway safety and their software or components need a secure oversight, Congress should create a clearinghouse in an existing federal agency to handle this. The National Highway Traffic Safety Administration might be a good candidate. Or maybe lawmakers could designate a spot like the Center for Public Safety at Northwestern University (aka the NU Traffic Institute) to tackle the chores.

We’ve got a lot of work to do to ensure our streets and highways stay as safe as possible, while also guaranteeing that individuals accused of serious wrongs get their due justice.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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