The National College for DUI Defense (NCDD) sponsors the most intensive and advanced DUI training seminars an attorney can attend. Not only do the Pennsylvania DUI attorneys at The McShane Firm regularly attend these seminars, I have been invited to present my research at the 2012 NCDD Winter Session to be held in Orlando from Jan. 19-20, 2012. My presentation is entitled “Why there is no Science in Evidentiary Breath Testing”.
DUI breath testing is completely unscientific. We are gambling with people's lives.
Briefly, DUI breath testing as it is used today was developed in the 1950′s and has remained largely unchanged since tat time regardless of the fact that science has completely evolved. DUI breath testing machines use an indirect method to produce a result and this method is not specific to ethanol. Many other substances, even some that are naturally produced in our bodies, can confuse the machine into producing erroneous readings even in people that are completely sober. On top of this, the software that these machines use have never been scientifically validated and there is an absence of oversight when it comes to making sure the machines are checked for its calibration properly. When all of this is taken into account, it is clear that thousands of people are being tested daily on inaccurate and unvalidated technology. DUI breath testing is a complete crap shoot.
Once again, it is a tremendous honor to be selected to speak at such a prestigious event which once again shows the recognition my work has received in the broader legal community.
Another week, another breath testing scandal. Whether it’s Philadelphia or our nation’s capital it seems like states and counties all over the country are reporting the same issue- faulty breath testing equipment leading to erroneous BrAC readings and false DUI arrests and even convictions. This week it’s Santa Clara’s turn.
The problem is not limited to these cities, it is a widespread problem that stems from the incorrect implementation of DUI breath testing devices. These devices do not measure alcohol directly and thus can flag naturally occurring substances in the body as ethanol. For example if a diabetic has a very low sugar level, or someone in a hyperglycemic state whose body transforms the ketones to isopropanol and/or naturally produced acetone can be flagged as alcohol. In some cases, the use of everyday items like a hand sanitizers has lead to a DUI breath machine reporting a false reading. You can even get a DUI for eating a sandwich. On top of that there are obvious design faults like in the scandal in Santa Clara County.
The icing on the cake is that individual police departments are responsible for maintaining and calibrating their own breath testing equipment, without any meaningful government oversight typically. Imagine an office manager asking an employee to perform a tedious task as per a set schedule and create reports that no one will ever check. What are the chances of this task getting done correctly? This is exactly what is going on in police departments all across the country. Officers with very little training are asked to calibrate their own DUI breath testing equipment without any regulatory body to check and see if they are in compliance.
The really sad part about all of this is that innocent people have been arrested and convicted of DUI violations based on this faulty evidence. They have suffered prison time, lost pay, license suspensions and the humiliation of being a convicted criminal all because of faulty breath testing.
This has really gone on long enough. How many innocent people have to suffer before our politicians wake up and find a better solution?
[Blogger's note and update 3/23/2011: We have been up-to-date on this developing story. The issue as far as we see it is going to effect literally thousands of convictions. The "issue" goes back to the switch over to the Intoxilyzer 8000 which occurred in September 2009.]
When I tell people that I am a PA DUI Lawyer, I am often times met with disdain because people think that everyone charged with a DUI is really guilty. This is really not the case as I have pointed out many times on this blog. There are many innocent people who are charged with PA DUI violations due many factors. One of these factors is bad breath testing equipment.
Pennsylvania Police are Wrongly Charging People with PA DUI violations
Philly Flunks Own Breathalyzer Test
Dozens of DUI cases in Philadelphia are set to be re-tried because of a bad breathalyzer, officials said on Wednesday.
Apparently, one breathalyzer used by police was showing incorrect blood-alcohol levels, MyFoxPhilly reports.
The district attorney’s office says in cases where people were found guilty solely because of the test, they will get a new trial.
In cases where other evidence was obtained, such as witness testimony or blood test, those defendants would not be reevaluated.
The problem could affect about 200 convictions.
Keeping a breath machine properly calibrated is really not that difficult. There are routine checks that need to be made and if there are problems, the manufacturers offer support. That is why this gross negligence is so appalling. This recklessness shows that these officers do not care about performing good police work. We are trusting cops who can’t keep their breath machines in order to keep our families and communities safe.
As an experienced Pennsylvania DUI attorney, I have witnessed the attitude of our police force on many occasions. I have also blogged extensively on the problems with police in PA in a DUI context. The core issue is that there are a lot of police officers who are under-trained, a few are lazy, and others are careless. They are wrongly charging innocent people with DUI. It is then up to us PA DUI attorneys to protect the rights of the citizen accused.
If you are wrongly charged with a DUI in PA please call 1-866-MCSHANE for a free detailed consultation.
One of the reasons I argue against stiffer penalties for DUI is because the technology and testing being used is very inaccurate and there is a high risk that these stiffer penalties will be applied to innocent people. In one case, a Minnesota man tested positive for alcohol and was sent to jail because this was a violation of his parole terms. The fact of the matter is he did not drink and the positive test was the result of his use of an alcohol-based hand-sanitizer. His charges were dismissed in court and now he is suing the laboratory that makes the tests.
You can get a DUI for using many common substances
Man sues lab over accuracy of alcohol test
Jailed on alleged probation violation, he claims false positive
When convicted drunken driver John Gerard Miller flunked a court-ordered test that showed he’d been drinking while on probation, he swore he hadn’t touched a drop.
Given a record littered with arrests and convictions for driving while impaired, there was little reason to believe him. Probation officers tossed him in jail to wait for a probation revocation hearing.
But when that hearing came, an attorney for Miller showed that June’s positive test results probably resulted from Miller’s use of alcohol-based hand sanitizer — and the company marketing the tests to law enforcement knew such products could skew the outcome but did nothing about it. In November, a judge in Minnesota’s Polk County ruled there was no convincing evidence Miller had violated his probation and ordered him released.
Miller, 46, of East Grand Forks, Minn., is now suing the company that makes the test, Redwood Toxicology Laboratory. He claims the exams, referred to as EtG/EtS, often are skewed by outside substances but that the company never says that when it markets the tests to probation departments and law enforcement.
Under certain circumstances, sadly, such as the case with this fellow, you can be accused of drinking simply by using hand-sanitizer. This is really something we should all think about, especially if you are one of those who believe “If you get charged with a DUI you must have been drinking.” With the increasing penalties for DUI all over the country, even a first arrest at a low rate can have grave consequences. This is especially traumatic fro those who are convicted because of the use of common legal substances which are interpreted as alcohol by these faulty DUI tests. Some of the items that produce false positives might surprise you.
The doctor, Gregory Skipper, said studies have shown a person’s exposure to a variety of everyday items, including hand sanitizers, mouthwash, sauerkraut and even bananas, can produce the same test results as drinking booze.
Add to this list cough medication, white bread, antacids, exposure to paint thinner and even being a diabetic and you will quickly realize that common citizens are arrested everyday and charged with Pennsylvania DUI. This is also one of the main reasons you should consult with an expert PA DUI attorney if you are charged with a DUI violation.
For a free detailed consultation please call 1-866-MCSHANE.
If I am stopped for a DUI in PA, am I required to Take the Hand-held Breath Test?
A lot of people get into trouble simply for not knowing their rights when stopped for a PA DUI. Police know this and try to intimidate people into obeying their orders and in the process forgo the protection they have under the law.
If you are stopped under the suspicion of DUI chances are that police offers will order you to step out of the car and take a breath test on their portable device. You should kindly refuse this request and here are the reasons why:
- Under PA DUI law, testing on a hand-held device is completely voluntary and a refusal to do so carries no negative consequences. The prosecution is not allowed to use this type of refusal as evidence against you in court.
- These devices are faulty and lead to many false positives. They are not accurate and are not specific to alcohol meaning that they will mistakenly report a BAC reading even for common substance like simple white bread!
- The reading from the portable breath test will help the police to build a case against you. In essence you are making it easier for them to convict you and harder for yourself to defend these charges.
Please keep in mind there is a difference between refusing to test on the portable roadside device and refusing the official state test on the larger machines at the police station. Refusing the State Test will result in you being charged with a DUI Refusal (please see the DUI penalties in PA for more details.
If you have any questions about breath testing please call 1-866-McShane to speak with a qualified PA DUI Lawyer.
The Intoxilyzer 5000 is one of the most commonly used breath machines in the United States. It is used for DUI testing in Pennsylvania as well as all over the country and, in a nutshell, it’s a piece of crap. It is not accurate and not even specific to alcohol. In fact, a group of defense in Minnesota are challenging the use of the Intoxilyzer 5000 in court. I wholeheartedly support this huge effort. I am proud to say that I am an out-of-state member of the Minnesota Society of Criminal Justice Intoxilyzer 5000 Source Code Coalition.
The DUI Beath Test Machines Used in PA are Being Challenged in Court
Here are some of the reasons why they are fighting the use of this machine in DUI cases (from Attorney Chuck Ramsay’s Blog Post):
1) The Intoxilyzer does not, to a reasonable degree of scientific certainty, accurately report alcohol concentrations. For example, an Intoxilyzer test result of .08 does not actually mean, and cannot be used to show, an alcohol concentration of .08.
2) Numerous scientific safeguards that are supposed to ensure that Intoxilyzer results are valid and reliable simply don’t work. This includes some shocking revelations, including the fact that the Intoxilyzer just flat out cannot properly measure breath volume, despite claims to the contrary. The Intoxilyzer also reports the presence of alcohol when a totally “clean” air sample is provided. Basic safeguards, like the ability to detect interfering substances (non-alcohol substances that show up as alcohol), the ability to detect radio frequency interference, and various “self-tests” all fail to work as advertised.
3) Essential components of the Intoxilyzer can be disabled without sending up any red flags. This includes heating elements and interfering substances detectors that are essential to providing consistent, reliable results.
4) The “slope detector” is shaping up to be about as faulty as we expected. Many people are being charged with “test refusal” because source code errors are reporting otherwise valid samples as “deficient.”
Numerous other flaws have been exposed, all leading towards the final question: Can we trust this machine to ensure that our roads remain safe, or is it little more than a “random number generator” that is sending innocent people to jail?
The crux of the matter is that the Intoxylizer 5000 is not accurate and it’s results cannot be considered to be scientifically valid or forensically useful. All of the PA DUI Attorneys at The McShane Firm have gone through rigorous training about this machine and these scientific issues and have the knowledge and experience to challenge its results in court.
Every Friday we will take a look at some of the most commonly asked questions about Pennsylvania DUI so that we can clear up any misconceptions and provide you with the most up-to-date and accurate information. Today:
Dear Pennsylvania DUI Lawyer,
My 20 year old son was charged with a DUI while he tested at .04. I thought .08 was the BAC limit for a DUI in Pennsylvania, am I wrong?
Pennsylvania has what it labels as a “zero tolerance” law for DUI for drivers under 21. That means anything above a .02 blood alcohol content will result in an accusation of being an underage driver being charged with a High Rate DUI (see our post The Legal Consequences for a Pennsylvania DUI for a more detailed description on Pennsylvania DUI Penalties for different categories .)
You should seek out a qualified DUI attorney because in my experience, often times these cases are very defendable. The breath testing devices are inaccurate and can give totally erroneous readings. Blood tests are also frequently not the true reading of BAC.
It might help you to read two of my recent posts:
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Underage DUI in Pennsylvania and Underage Drinking in Pennsylvania
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Underage Drinking and DUI in Pennsylvania: LOD and LOQ Defense
If you would like to ask a question, please submit it via the contact us link.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
The Government wants to install alcohol detectors in cars, but is that a good idea?
Schumer calls for alcohol detectors in vehicles
WASHINGTON — Sen. Charles E. Schumer said Thursday he’ll push for legislation to boost alcohol-detection technology in cars, which he said could greatly reduce drunk driving — especially for repeat offenders.
Basically the idea here is to develop technology that won’t allow a car to start if the driver has a BAC over .08. At first the technology will be voluntary and you can rest assured that the proponents of this bill plan to make this measure mandatory at some point. Senator Schumer goes on to say:
Anybody who’s opposed to this should be ashamed of themselves.
Well Senator Schumer I am opposed to this measure and I am not the least bit ashamed because I have facts that show why this is a bad idea.
1. Installing Alcohol Sensors on Cars Treats Everyone Like a Criminal
This measure is another way of saying, “Prove your innocence before you can drive”. I have blogged about the presumption of guilt in a DUI before and this is another measure that proves my point. Legislators backed by powerful lobbies are pushing through new laws that go against the fiber of civilized society and justice, the presumption of innocence- all for the benefit of private industry, meaning those who make the inhibition devices. There is A LOT of money there if it becomes mandatory. Here you can be perfectly innocent but you have to prove that before you can use your own car. What about false positives? What if the machine malfunctions? Why not just have a police officer follow me around all day to make sure I don’t murder someone? Wouldn’t that reduce the murder rate (unless someone flips out on the cop-stalker)? Why not search all of my grocery bags at the supermarket to make sure I didn’t shoplift? Where do you draw the line?
2. Current “Advanced” Technology is Pretty Crappy
After thousands of Pennsylvania DUI cases and many hours of training on breath testing technology and all forms of analytical chemistry, I have come to the educated and settled conclusion that the technology we currently have that could be placed in a car and is not invasive, but rather is passive, is total garbage. The machines are quirky and are not even specific to ethanol which is drinking alcohol. You can have an illegal BAC level after eating a slice of bread with some forms of testing:
or if your phone rings:
Last week I blogged about how Faulty Machines Lead to 400 DUI Convictions in D.C. Imagine having to drive your wife to the maternity ward or a critically ill next door neighbor to the hospital and the car doesn’t start due to a false positive. It happens more often than you might suspect. On top of that you are asking car manufactures, who keep recalling vehicles due to production faults, to mass produce these devices. Are they capable of doing it right? Who will calibrate them properly?
3. People Will Still Find Ways Around It
People are resourceful and will always find workarounds which will deem these devices in all practical effects useless. Its like when offices use a firewall to try to keep employees off Facebook and YouTube but those who want to will always find a way around it.
In my experience, I see this as a political tactic to appease special interest groups and a way for folks to make A LOT of money. I am of the opinion that laws should be based on hard and most importantly, objective evidence and validated science, not political pressure or profit.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Just because someone blows a high number, doesn’t mean they are guilty of DUI. These breath machines are quirky and if not calibrated properly (a very common problem) they can yield artificially high measurements. They are not specific or selective for exclusively drinking alcohol or ETOH. Look what happened in our nation’s capital:
400 drunken-driving convictions in D.C. based on flawed test, official says
Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.
D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said.
Not just a few machines, mind you, every single machine they used was improperly calibrated:
The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.
One officer’s mistake has caused hundreds of people to suffer. Some of them may have indeed been guilty and will probably get off the hook. Many of them were innocent and had to go through the embarrassment, distress and hardship of prison and other sanctions. Some of them may have lost their jobs and this may have affected their family lives. Innocent people’s rights and liberties have been taken away.
This is a real tragedy and real people have been affected.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Pennsylvania residents don’t trust self-regulating butchers, so why do they trust self-regulating police officers and technicians?
I came across an article about self-regulation that I would like to share:
Pennsylvania mulls handing weights and measures inspection to private sector
When consumers get a bad meal, they know it.
But getting shortchanged on a few ounces of ground beef might not be as readily detectable. And motorists likely don’t know if the gas pump is accurate.
That’s where weights and measures inspectors come into play to provide consumer protection. But the state Department of Agriculture is considering a plan to turn over inspections to the private sector.
The plan would allow employees of a business to perform inspections on devices for their bosses. A grocery store employee, for example, would make sure scales accurately show a consumer is getting a pound of ham at the deli counter.
So here is an example of the government being overloaded and shifting the responsibility of regulation to the people it’s supposed to be checking on. Unless watched, people can cheat, be negligent, or inaccurate or even just plain lazy. All of that can end up costing consumers at the pump and at the grocery store. I think most Pennsylvania residents would agree that this is a bad idea. What’s even more astounding? That Pennsylvania police officers do exactly the same thing and no one seems to notice, no one knows and no one cares.
That’s right. Those fancy breathalyzer machines and even the gas chromatographs used for DUI tests are not calibrated or checked by independent inspectors. In fact, in the case of breath testing, police departments themselves are responsible for checking and maintaining them. And they don’t even do a good job of it. I have seen many maintenance logs that were incomplete and did not follow the prescribed standards. I see hand written logs that show calibration results out of wack and also results that should have resulted in the machine being placed out of service; yet, they keep on testing. It’s self-regulation folks and once again, there is room for error, negligence, laziness and for a bad apple to do something wrong. The shocking part is that Pennsylvania residents and lawmakers are not outraged by this. I think we need to wake up and demand tougher standards for the police and make sure these standards are being enforced. People end up in jail because of these faulty readings.
This is an important issue we need to start thinking about, because at the end what’s worse, losing a couple ounces of meat or ending up in jail for a DUI because of an incorrect measurement?
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
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