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10 July 2009 5:52 PM
Breathalyzer Revisionism
The LA Times reports:
Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage....The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual's medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said."The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence" in certain cases, Justice Carol A. Corrigan wrote. The court's answer was yes.
I am very much against drunk driving. Among my high school friends in California, it is a point of pride that everyone is quite careful about either abstaining or sleeping on a floor or sofa rather than driving home if they've had too much to drink. I am nevertheless puzzled by Kevin Drum's reaction to this news:
As a legal matter, this might be the right ruling. I don't know -- but the decision was unanimous, which suggests there was little controversy about it. As a practical matter, though, it's a pain in the ass. In the trial I sat on, the defense attorney played up this stuff for all it was worth, essentially trying to convince the jury that breathalyzer tests were so variable as to be completely useless. And it almost worked. Most of the jury was initially willing to let our guy walk because they were so confused by all the testimony that they figured there just had to be reasonable doubt. It basically turned the case into a circus -- and one that, needless to say, can only be played by wealthy defendants who can afford fancy lawyers.
I was disgusted by the whole thing. If there's a very specific reason to think a particular breath test is wrong -- equipment malfunction, relevant medical condition, etc. -- then I wouldn't mind this kind of testimony. But just as a general catchall to allow defense attorneys to throw mud on the wall and confuse people? No thanks.
If a breathalyzer test can be rendered inaccurate by "an individual's medical condition, gender,
temperature, the atmospheric pressure and the precision of the
measuring device," aren't there always several specific reasons to suspect that the measurement rendered is actually incorrect? It is, rightly, a big deal to be convicted of drunk driving. This would seem to demand that law enforcement use accurate means of assessing guilt.
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Not to mention, being wrong could mean it generates a false negative.
Seems to me the defense hired one hell of an expert witness, if they successfully convinced a judge that breathalyzers don't work.