Breathalyzer Basics
To begin, what are breathalyzer tests? A breathalyzer test is a tool used by police officers to measure the blood alcohol content (BAC) levels of a driver in suspected DUI cases. Breathalyzer tests, or more specifically breath tests, are scientifically known as evidential breath tests (EBTs). Under California Vehicle Code Section 23152, the "implied consent" law states that it is unlawful for anyone to operate a motor vehicle while legally intoxicated. If a police officer says you need to take a breathalyzer test, you must. If you do not take the requested breath test, it can lead to a license suspension under the Implied Consent Laws.
Breathalyzer tests are typically administered by police officers when there is suspicion of a DUI. For example, if an officer pulls over a motorist who is driving erratically and believes he or she is under the influence, the officer will likely request a breathalyzer test. Assuming there are no other issues with the motorist’s legal status, such as being under the legal drinking age, the officer is well within his or her rights to require the breath test . In fact, refusal to submit to a breathalyzer test can result in a steep suspension of up to one year.
Breathalyzer tests are not the only tests used to determine if a motorist is legally intoxicated. Field sobriety tests (FSTs), medical intoxication tests, and other tests are used to determine if a driver has a BAC under .08. The primary difference between these tests and a breathalyzer test is that a breathalyzer test measures BAC, while other tests are used to determine if a motorist is intoxicated. Typically, when a driver is pulled over, the arresting officer will first administer one or multiple FSTs. If the officer believes the person is intoxicated, he or she will request the driver submits to a breathalyzer test. If FSTs and a breathalyzer test indicate a person is intoxicated, the driver will most likely be arrested.
It is important to note that breathalyzer tests are not perfect. These machines are not always accurate, nor are they always in working order. In fact, the breathalyzer machine itself could be broken, which could give inaccurate results. Additionally, these machines are not always properly calibrated, leading to inaccurate results.
How a Breathalyzer Test is Accepted into a Court of Law
The legal criteria for admissibility of Breathalyzer evidence in a criminal trial are complex, however, in simple terms, the state is required to meet two conditions for the results of a Breathalyzer test to be admissible as evidence in court. While other conditions may also be applicable, such as proper maintenance of the device and compliance with several general rules of handling the results of the test, these two requirements are the "public policy" requirements that will most likely determine whether or not the state can introduce the results as admissible evidence in its case against you.
First, the state must show that the officer who administers the test must be a highly trained and competent witness. Simply put, under the rule, the witness must be qualified.
Second, the state must show that the Breathalyzer machine itself was properly calibrated and maintained according to the rules that govern such machines. While courts generally attempt to not concern themselves with the technical details involved here, if the machine was improperly maintained, it is likely that the results are unreliable.
If the state is unable to show either of these two requirements, the results obtained on the Breathalyzer machine will be held inadmissible in court and will not be considered against you. As a result, the prosecution will not be able to introduce this evidence as part of its case without first clearing the hurdle of admissibility.
Potential Challenges to Breathalyzer Test Results
There are several common challenges and defenses that can be raised against the admissibility of breathalyzer results. For one, the defendant may be able to argue the device was not properly calibrated at the time of testing, leading to inaccurate results. Such inaccurate results may cause false positives or false negatives. Law enforcement officers are required to conduct periodic calibrations of their breath analysis devices as a condition of their use. If there are gaps in this calibration schedule, the defense may be able to argue the results of the test are not admissible.
In addition, the defense may argue the person who performed the breath test was not properly certified on the specific type of testing device used at the time of testing. Additionally, the operator may be required to complete specific training and/or experience in performing the breath test. As with the calibration issues, the defense may be able to argue these requirements were not properly followed.
Finally, the defendant may also simply challenge the results of the test as an inaccurate reading of his or her blood alcohol content, which may be bolstered by cross-examination of the officer who performed the breath test. Such cross-examination is often the best tool for challenging the accuracy of the breath test, as these tests are inherently unreliable in the first place.
The inhaled breath sample used by the breath analyzer may contain bacterial contamination. This contamination may lead to elevated blood alcohol readings, which may then suggest the subject is under the influence of alcohol. Moreover, a breath analysis device is commonly preloaded with alcohol that is used for its calibration. If even a trace amount of this alcohol remains in the device, it may then contaminate the sample that is subsequently supplied by the driver.
State-by-State Admissibility
Variations among states in admissibility of breathalyzers in court can depend on the state’s own precedent and laws, which will vary throughout the country. PJI 1:72, which is often used by several states to calculate penalties and is published in New York State as State Criminal and Traffic Court Practice, notes that the admission of BAC evidence by breathalyzer is commonplace. PJI 1:72 has been cited in, among other states, New Jersey, Hawaii, and Georgia. For example, in State v. Friedman, 792 A.2d 769, 770 (N.H. 2002), the state supreme court held that the state’s legislature had acted within its authority to allow breath-analysis test results from machines like the Draeger Alcotest 7410 to be admitted into evidence, and that such tests were not subject to separate, individual authentication. That case cited PJI 1:72 for its holdings.
As mentioned above, the NY State Criminal & Traffic Court Practice (PJI 1:72) is used by many states in their courts. So too is the 2018 treatise Underage Drinking and the Law , which cites to PJI 1:72 for the proposition that breathalyzer BAC results "have been frequently held to be admissible on the ground that they are scientifically reliable." PJI 1:72 also cites a footnote from State v. Phillips, 54 Haw. 118, 121, 503 P.2d 144, 146 (1972) stating that the state’s version of the Draeger had "obvious reliability."
Similarly, PJI 1:72, which is a published New York state jury instruction, has been cited by several other states (Pennsylvania, Wisconsin, Minnesota, Connecticut, for example). Such may have been the basis for the recent Commonwealth v. Madas, 107 A.3d 118, 125-126 (Pa. Super. Ct. 2015), where the court stated that the Pennsylvania General Assembly had determined that BAC results derived from breathalyzer tests are sufficiently reliable to be admitted into evidence. Citing the TM-5000 series breathalyzer, which is the exact same name used by Draeger in reference to their Alcotest 9510 and its predecessor, the Alcotest 6810. These references support that science behind the Draeger and court rulings.
New Court Cases and Their Impact
The topic of breathalyzer admissibility in court proceedings has been a subject of legal scrutiny for many years. With recent developments in science and law, there have been a number of cases that have had a significant impact on the use and admissibility of breathalyzer tests in criminal prosecutions. Understanding these cases is essential for any legal professional who deals with DUI/DWI cases.
In State v. Kyle Patrick McGill 2013-006348 (Tenn. App. Ct., July 15, 2014), the Tennessee Court of Criminal Appeals held that a breath analyzer test could not be used as evidence in the DUI/DWI trial of a man accused of drinking alcohol and then driving his ATV into a parked car, ultimately injuring himself and killing his passenger. The Court stated: "We hold that NHTSA Model Specifications for Breath Alcohol Testing Devices do not establish a reasonable basis to conclude that the Alco-Sensor IV properly functions exclusively in the field under conditions for which it was designed."
In State v. Rojas, 2014-00263 (Haw. Ct. App. Ct., September 25, 2014), the court upheld the court finding the results of a breath test to be admissible, stating their reasons in the case as follows: "we hold that a police officer was permitted to complete the certification form and that the certification objection that Appellant raised below is meritless." This decision is important because even if one of the breathalyzer experts is found to be not competent, this finding does not encompass all DWI breathalyzer specialists.
In Gondo, the Supreme Court of Ohio held that breath test results obtained in a DWI/DUI case would be deemed inadmissible for pretrial purposes when they were not certified and signed by the person performing the test. In its rationale, the court stated that the foundation for the admission of those results is not removed by a further showing by the prosecution that the results were in fact accurate, but rather that the statute required the foundation to be established with the certification.
In Cockrell v. State of Texas, 2006-CR-918 (Tex. Crim. App. Sept. 10, 2014), the court reversed a criminal conviction, holding that the trial court did not err in excluding breath test results that were discovered to be inaccurate. The court held that because the testing machine failed the quality control check, the breath test results did not demonstrate a reasonable degree of accuracy and therefore were inadmissible.
These cases show the evolution of law concerning the admissibility of breathalyzer tests in criminal court. Future DUI/DWI cases will feature more legal challenges related to breathalyzer tests, as scientific knowledge and understanding of their uses and capabilities continue to improve.
Future Directions for Breathalyzer Admissibility
As courts continue to grapple with the accuracy and reliability of breathalyzer evidence, it’s likely that we’ll see further technological advancements aimed at improving the overall performance of these devices. Major manufacturers are investing in the development of more sophisticated sensors and algorithms designed to address the challenges posed by breath testing. These innovations have the potential to significantly improve the accuracy and reliability of breath alcohol testing, which will likely bolster the legal admissibility of breathalyzer evidence in courts .
On the legal side, we may see a slow but steady trend toward a more critical evaluation of breath analysis software and operational protocols for breath testing. As the science behind breath testing continues to be scrutinized, legal and scientific experts may challenge outdated software to ensure that tests are being conducted and interpreted consistent with current scientific standards. This means that defense counsel specializing in DUI cases will need to stay current on the latest developments in the field.