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5 Reasons to Question Alcohol Breath Tests

For months, reporters at The New York Times tried to get inside the black box of breath testing. We interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records to find out how reliable these machines, a bedrock of the criminal justice system, really are.

These devices wield incredible power within the justice system: The numbers they print out are treated as all but indisputable by juries, and defendants usually don’t try to fight them.

But when they do, they sometimes win — and those victories have far-reaching consequences. In the past year, more than 30,000 test results were thrown out by judges in Massachusetts and New Jersey. Other challenges are moving through the courts in states across the country.

Here are five key points emerged from our reporting:

The reasons vary, but breath-testing devices sometimes generate skewed results, even though they are marketed as being precise to the third decimal place.

Many of the problems stem from simple human error. Some labs have skimped on maintenance, while others have made mistakes in setting up their machines. In New Jersey, one trooper’s calibration mistake invalidated more than 18,000 tests.

States remain confident that their testing programs are sound, even though some have turned off safeguards or developed ad hoc workarounds for problems with their instruments.

The tests are so deeply trusted by states that many have made it a crime to refuse to take one when ordered by a police officer. The punishment usually involves losing your license for as long as you would have if you had failed the test.

When flaws are discovered, the fix has often been for courts to throw out the questionable test results — weakening otherwise strong cases.

In one, a man who hit an 83-year-old pedestrian in a liquor store parking lot was acquitted. In another, a man’s test result was 0.32, a level that would leave most people unconscious. It wasn’t either man’s first arrest on charges of driving while intoxicated.

In Massachusetts, it started with several individual cases: one person challenging one arrest. Then a loose group of defense lawyers banded their clients together.

It took a lot of time and money, but Massachusetts was eventually forced to throw out every breath test done in the state for eight years. It was one of the largest exclusions of forensic evidence in American history.

Lawyers in Massachusetts are preparing for new drivers to come forward to challenge their convictions. So are lawyers in New Jersey.

Those were rare instances of courts addressing the issue on a statewide basis. Drivers in other states are catching on. Thousands of motorists have been able to cast enough doubt on the results of their breath tests to win acquittals.

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