These Machines Can Put You in Jail. Don’t Trust Them.

Source: https://m.sfgate.com/

Stacy Cowley and Jessica Silver-Greenberg, New York Times

November 3, 2019

A million Americans a year are arrested for drunken driving, and most stops begin the same way: flashing blue lights in the rearview mirror, then a battery of tests that might include standing on one foot or reciting the alphabet.

What matters most, though, happens next. By the side of the road or at the police station, drivers blow into a miniature science lab that estimates the concentration of alcohol in their blood. If the level is 0.08 or higher, they are all but certain to be convicted of a crime.

But those tests – a bedrock of the criminal justice system – are often unreliable, a New York Times investigation found. The devices, found in virtually every police station in the U.S., 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 in recent years.

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 homebrewed 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.

The Times 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. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.

A county judge in Pennsylvania called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny. In response, local prosecutors stopped using them. In Florida, a panel of judges described their state’s instrument as a “magic black box” with “significant and continued anomalies.”

Even some industry veterans said the machines should not be de facto arbiters of guilt. “The tests were never meant to be used that way,” said John Fusco, who ran National Patent Analytical Systems, a maker of breath-testing devices.

Yet the tests have become all but unavoidable. Every state punishes drivers who refuse to take one when ordered by a police officer.

The consequences of the legal system’s reliance on these tests are far-reaching. People are wrongfully convicted based on dubious evidence. Hundreds were never notified that their cases were built on faulty tests.

Related story: https://www.nytimes.com/2019/11/03/business/breathalyzer-investigation-takeaways.html