Breathalyzers Are Most Commonly Used In Police DWI Or DUI Investigations – Are The Results Reliable?

Breathalyzer machines are the most common method used by police in impaired motorist investigations. In addition to a breathalyzer, a motorist’s B.A.C. can be determined under state law by testing blood, urine, or saliva. Still, the question of whether breathalyzer machines are accurate or foolproof remains prevalent. My response? Hardly.

A 2019 New York Times article highlighted many of the Breathalyzer’s shortcomings spurred largely, no surprisingly, by deficiencies surrounding the officers administering the tests and the police agencies responsible for its proper operation, administration and calibration.

The 2019 New York Times article titled “These Machines Can Put You in Jail; Don’t Trust Them…” undertook an in-depth look into the accuracy of Breathalyzer instruments across the country. The authors, Stacey Cowley and Jessica Silver-Greenberg, highlight, in part, that over 30,000 breathalyzer results had been thrown out in 2 states alone — New Jersey and Massachusetts — as a result of “lax government oversight” and “human error.” (Reference, https://www.nytimes.com/2019/11/03/business/drunk-driving-breathalyzer.html)

The New York Times article highlights deficiencies long trumpeted by skilled defense attorneys for decades. The article took a more comprehensive look at the problem nationwide.

What Does The Law Or Statute Require In New York?

The New York State Vehicle and Traffic Law section 1192, generally, and New York Codes, Rules, and Regulations (NYCRR) sections 59.1 through 59.9, offer guidelines concerning the Breathalyzer machine and processes for DWI arrests and chemical tests generally.

Per NYCRR, the New York State Department of Health (DOH) is responsible for the regulations, policy and processes regarding Breathalyzer instruments. The DOH provides a conforming products list of approved breathalyzer models for use by police agencies throughout the state. DOH also provides an approved list of Preliminary Breath Test devices, or PBTs, which are the portable breath test units police officers carry and use in the field (roadside) to preliminarily gauge the motorist’s B.A.C. It is important to note that the PBT’s B.A.C.% results cannot be used in court – only whether the motorist tested positive or negative for the presence of alcohol in the field (if positive, that typically advances to the Breathalyzer chemical test, the larger unit at the police station.)

Breathalyzer instruments must be calibrated regularly according to the manufacturer’s instructions and guidelines. NYS law requires that breathalyzers are calibrated annually at a minimum. DOH guidelines require that police officers successfully complete training before they can administer the breathalyzer machine on a suspected impaired motorist. Police officers in NYS are issued a state DOH permit upon their successful completion of Breathalyzer training. However, as highlighted by the NY Times article, operator (police officer) error is a major part of their findings on why Breathalyzer results have been determined inaccurate and, in some instances, the results thrown out of court.

Common Breathalyzer Mistakes

The Breathalyzer is not a set-it-and-forget-it machine or instrument. Various factors can affect its accuracy. Some of those factors include:

• Calibration Issues: Breathalyzer machines need to be regularly calibrated to ensure they’re giving accurate readings.
• Operator Error: The person administering the test might not be fully trained or might perform the test incorrectly, meaning not in accordance with manufacturer instructions or regulatory requirements (under NYCRR)
• Motorist Medical Conditions: The motorist’s preexisting medical conditions, like acid reflux; the presence of dentures or other such medical equipment, and even the use of mouthwash, can affect or impact whether the proper air sample is being captured (e.g., mouth-alcohol vs. deep alveolar lung air) and, in essence, the resultant BAC.
• Environment Issues: RFI (Radio Frequency Issues); the presence of certain nearby local solvents; the electrical outlet used, and other factors can impact the instrument’s performance.

What Is NHTSA And What Role Do They Play?

NHTSA stands for the federal National Highway Transportation and Safety Administration. NHTSA is the agency that oversees police officer training throughout the country in impaired motorists. Randall F. Inniss is an attorney who possesses the rare qualifications having personally made numerous arrests for DWI. DWI is the crime he now primarily defends as a criminal defense attorney. Such qualifications are extremely rare among attorneys in the criminal defense bar.

Why Hire Attorney Randall F. Inniss Of XTROOPER Defense To Defend Your DWI Case?

Attorney Randall F. Inniss is a former 22-year state trooper. His law office, XTROOPER Defense, focuses on representing individuals charged with DWI and DUI. He is an Instructor in Standardized Field Sobriety Tests (SFSTs), the roadside tests officers use to develop probable cause in an impaired or intoxicated motorist investigation. Attorney Inniss knows the ins-and-outs of a DWI arrest and is versed in officer tactics and the Breathalyzer instrument. He has participated in teaching SFSTs to attorneys, to give the profession better knowledge in impaired cases they defend. He knows the shortcuts taken by police officers, from the initial traffic stop to the administration and scoring of SFSTs, to aspects of the chemical test whether provided by blood, urine saliva or the Breathalyzer machine.

As a NHTSA instructor in standardized field sobriety tests – fewer than 1 in 1000 attorneys possess this qualification – Randall Inniss has training, and experience held by few DWI and criminal defense counsel. Attorney Inniss now teams with other NHTSA instructors to formerly train attorneys in police-learned SFSTs. With an acute knowledge of SFSTs and over 2-decades of police experience as a New York State Trooper, Randall F. Inniss knows has rare insight and experience in DWI defense.

Did the police officer administer the SFSTs properly? Did the officer identify the proper SFSTs clues. Did the officer score the SFSTs properly in accordance with national trained standards? Did the officer adhere to key components of the Breathalyzer’s operational checklist? The above represents a few key areas in defending a DWI case. It is important to note that every DWI and impaired motorist investigation comes with its own set of factual allegations. A defense should be tailored to the specific case facts and motorist’s overall background.

A Collective, Team Approach

As a premier, boutique defense firm whose primary area focuses on DWI and DUI defense, our office has teamed with top industry professionals. From social workers who handle your Alcohol Evaluation (a typical requirement with an impaired-motorist arrest,) to experts in SFSTs to scientists versed in Breathalyzer machines and blood analysis undertaken at hospitals and forensic labs, we can pursue a team-based approach to your DWI and impaired driving case.

What Do You Do Now?

If you’ve been charged with DWI in the Hudson Valley area, you may feel the odds are against you. The Breathalyzer result may seem like an insurmountable roadblock. It is important to consult an experienced DWI attorney. Attorney Randall F. Inniss of XTROOPER Defense (The Inniss Firm, PLLC.) has rare qualifications among criminal defense attorneys as noted above.

Give our office a call for a complimentary defense strategy session to discuss your case and how to fight or resolve the charges against you. Put that rare insight and experience to work in your case! Call XTROOPER Defense at (845) 533-0265 or 877.XTROOPER (987.6673) today!

The above article is for educational purposes only and does not constitute legal advice or create an attorney-client relationship. You should not rely on this information or substitute it for seeking the advice of counsel in your individual arrest and case nor apply it to your circumstances. No attorney-client relationship is established from your reading this article or seeking a consultation concerning your case without ultimately signing an Engagement Letter. Attorney advertising.