Flawed Breath Tests in California

     Hundreds of drunk driving convictions in Ventura County could be tossed out because a defect in some of the handheld Breathalyzer machines purchased earlier this year is causing inaccurate blood-alcohol readings. The Ventura County District Attorney’s Office has sent memos to local attorneys saying that eight Intoximeter Alco-Sensor V breathalyzers have shown “erratic results” in blood-alcohol tests taken between January 20th and March 31st, according to Kevin Drescher, the supervising attorney with the felony unit.

     The county purchased 128 of the devices, paying about $4,800 for each one. Drescher said he didn’t know how many people charged with DUI were tested with the Alco-Sensor V during that time. “I don’t have the actual numbers,” he said, adding that the office was still looking into the matter. “Obviously, we are trying to do what’s right in this situation.” He added the information on who used the eight defective devices should be easy to obtain since it is data entered into the machine. Drescher said law enforcement has stopped using all Alco-Sensor V devices.Assistant Sheriff Gary Pentis said Alco-Sensor V had a defective mouthpiece resulting in “irregular readings.” He said the defective machines will be fixed, tested and returned to the county in about three months. The department will use the older model, Alco-Sensor IV in the meantime. He said every law enforcement agency in the county uses the device.

     The District Attorney’s Office sent the memo to the Public Defender’s Office on April 15th, said Chief Deputy Public Defender Monica Cummins. She said about 160 clients who were either convicted of DUI during this time or have cases pending, will be contacted by the office. “Some cases are still open,” she said. Cummins said the defective machines had “no evidentiary value” that could be used in court, but could have resulted in people getting convicted or pleading guilty to drunk driving based on erroneous Breathalyzer tests results.Drescher said his office will check on a “case by case” basis where defective devices were used to determine the appropriate thing to do.

     Attorney Robert Sandbach said a client’s arraignment for drunk driving was postponed because he needs more information about the Alco-Sensor V. He and his client went to the Department of Motor Vehicles Tuesday to request a postponement on a hearing to suspend the client’s license. He said his client was “alarmed and shocked” after finding out the machine was unreliable and possibly inaccurate. Sandbach said he is aware of two other clients who were arrested for DUI and were tested by the Alco-Sensor V. 

     Sandbach said on top of the jail time, fines and fees, and getting a license suspended, there is another toll for the wrongly accused. “The embarrassment of going through the process only to find out that the evidence was not reliable,” said Sandbach.

     During a news conference in January, Ventura County Sheriff Geoff Dean said the use of the microphone-sized instrument would improve safety in the community, providing instant reading of a motorist’s blood-alcohol level. The devices were funded through a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration. Officers were given about four hours of training on the devices before being sent out into the field.

     Attorney Mindy McQueen, who specializes in DUI cases, said Breathalyzer devices have never been infallible. She said the technology to make the devices faster, smaller and more economical has resulted in manufacturer design flaws.”These machines have never been infallible and that’s something that defense attorneys have tried to point out for years,” said McQueen, a member of the California DUI Attorneys Association.

     Pentis said the machines passed stringent testing before they were put to use. He said an officer in the field discovered the problem, reported it immediately, and the machines were pulled out and tested. Apparently temperature played a part in the false readings. Pentis said the only way the sheriff’s crime laboratory could duplicate the flaw in the Alco-Sensor V was to put it into a freezer. Pentis said the Alco-Sensor must be 100 percent accurate before it will be used by law enforcement. He did not explain why it was put into use when it was clearly not 100 percent accurate.

     Cummins said the Public Defender’s Office will move to have the convictions dismissed in cases where there may have been blood-alcohol errors. But some people who were found guilty or pleaded guilty as a result of these false readings have already served jail time, paid thousands of dollars in fines and have done community service as part of the conviction, Cummins noted. Also, harsher penalties are meted out to motorists who blow a .15 percent blood-alcohol level, said Cummins. In California, a blood-alcohol reading of .08 is considered the benchmark for being legally intoxicated.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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