Dangerous Witnesses You Can’t Cross Examine: The Unreliability of Alcohol Breath Tests and OVI/DUI Defense

Alcohol breath-test machines are no stranger to criminal defense attorneys who defend OVI/DUI cases. Whether the arresting agency is a municipal police department or the Ohio State Highway Patrol, defendants arrested for OVI are always presented with a choice: to blow or not to blow.

Those who submit to the alcohol breath test and register a blood alcohol concentration of .08 or greater are presumed intoxicated (and therefore guilty) by virtue of the machine’s conclusion. Prior to the Ohio Supreme Court’s decision in Cincinnati v. Ilg, 141 Ohio St.3d 22 (2014), OVI/DUI defendants in Ohio were not even permitted to challenge the accuracy or credibility of breath test results in court. This is a startling reality, as these machines are notoriously unreliable for a myriad of potential reasons.

On November 3, 2019, the New York Times published an article summarizing a nationwide Times investigation into the reliability of alcohol breath test machines.

The Times interviewed over 100 individuals – lawyers, scientists, and police officers, among others – about their knowledge and/or experience with breath test machines. John Fusco, an executive who ran a company that manufactures the machines, told them they “were never meant to be used” as the “de facto arbiters of guilt” they’ve become in courts all over the country. Multiple judges in various states expressed their distrust of the tests, and a group of prosecutors in Pennsylvania reported they no longer use them in light of the unreliability of results.

According to the report, many of the machine’s issues are products of human error – improper calibration, expired or tainted chemical solution, and software-programming mistakes are common examples of defects that may render invalid results. The article detailed several cases where alcohol breath tests were excluded from evidence as invalid or unreliable. A series of suppressions which occurred in Massachusetts (to the tune of over 36,000 breath tests) was classified as “one of the largest exclusions of forensic evidence in American history.” Between Massachusetts and New Jersey, there are at least 42,000 convictions premised upon invalidated breath test results, the Times reported.

The article also summarized the origin of alcohol breath test machines – a unique perspective absolutely worthy of review. According to the Times, the first of these machines was invented near the end of the Prohibition. Two decades later, a police photographer and amateur chemist invented a similar device – “the Breathalyzer.” The nickname that stuck.

The Times’ article can be found here. Whether you are already experienced in challenging the validity and reliability of alcohol breath test results, or are just beginning to learn the complexities of OVI/DUI defense, it is truly worth the read.

Posted in Reports.