The AND problem.
"Legal technicality means that if
you were charged with a DWI over the past several
months, you can go free" has been a continuous talking
point lately. Over the past few weeks, newspapers have
covered the story of a "mistake" in the law that
threaten the admissibility of breath tests for people
suspected of driving under the influence.
(See
here and
here).
The basics of the controversy are
as follows: For some time, 19
CSR 25-30.051(2), the law that controls how breath test
machines must be calibrated, read as follows:
Standard simulator solutions, used to verify and
calibrate evidential breath analyzers, shall be
solutions from the approved suppliers. The
standard simulator solutions used shall have a vapor
concentration within five percent (5%) of the following
values:
(A) 0.10%;
(B) 0.08%; AND
(C) 0.04%.
Simply put, breath test machines
operate by measuring the amount of alcohol in the
breath. The only way to judge whether
or not the machine is reading accurately is to test it
every 35 days by using an approved solution that has
been measured to contain .10% .08% and .04% alcohol.
By using these solutions as a control group, the
breath test is calibrated so that the suspects' breath
can be more accurately measured.
Here's where the controversy
starts. For years, despite what the
law said for the past 14 months, law enforcement
throughout the state has only been calibrating the
devices using one of the approved solutions instead of
all three. It had been their
practice to do so prior to the change in the law and
they never updated their practices.
Defense attorneys have therefore argued
successfully against the admissibility of the breath
tests because law enforcement did not follow the
scientific procedures the law told them to follow.
After picking up on the story, the
press has been labeling this as a "legal technicality"
and that it may let thousands of drunk drivers go free.
This is the wrong way to approach the message of
this story. First of all, even if the
breath test is not admissible, the rest of the case
against the purported drunk driver should still be
admissible. The breath test is not
the only part of a prosecutor's case, nor should it be.
The idea that because one piece of evidence is
inadmissible so the charges get dismissed is ludicrous,
it just makes the case against the person less of a slam
dunk.
Secondly and more importantly, this
should not be dismissed as a simple "legal
technicality". It is a scientific
technicality. When dealing with an
infrared spectrometer that attempts to measure the
content of a substance to one-one-thousandth of a
percent, technicalities are vital.
Despite what the press and prosecuting attorney offices
tell the public, this machine is not a magic box that
tells us whether or not a person has control of their
faculties and should or should not be driving.
It is a highly technical device that requires
constant maintenance and calibration to ensure that it
can do its job effectively. This
maintenance includes testing the device using fluids
with pre-established alcohol contents.
Without this calibration, using the device to
detect alcohol content in deep lung air is about as
accurate as blowing on a magic 8-ball and having it
determine whether people should go to jail and have
their lives ruined by a DWI conviction.
Others have dismissed the change in
law and the blunder by law enforcement as simply a
scrivener's error, or that the law was just written
incorrectly, and therefore judges should still admit the
breath test results. To do so sets a
very dangerous precedent that would seem to state that
it's ok when a court or law enforcement wants to change
the law on their own. It says that
cops and judges can pick and choose which laws they
choose to enforce and dismiss those that they don't feel
are correct.
Besides that, there are ample
reasons why this is likely not just a mistake in writing
the law. It's not like using more
than one calibration for breath testing devices is
unheard of. In fact other states
mandate it. Pennsylvania for example mandates that
machines are calibrated using a .05, .10, and .15
solution to ensure that the machine accurately measures
the correct range of likely breath tests.
Think of it in terms of a thermometer.
We know that a basic household thermometer used
to measure one's temperature is accurate for a range of
basically 90 degrees to 110 degrees because it is
supposed to measure body temperature.
We know this because the company that puts out the
thermometer tests it at different temperatures, not just
98.6 degrees. If it was only tested
at 98.6, there would be no way to determine the accuracy
of its temperature readings at 94 or 105 degrees.
Breath tests, as all other scientific measuring
devices, are similar in this regard.
In short, a breath testing device
that is calibrated at .10% only would be a good device
at measuring the alcohol content of breath at .10% and
that's all. A device calibrated at
.04, .08 AND .10 would be an accurate device for
measuring that range of alcohol content.
Don't dismiss this as a simple
legal technicality or a typo. This
was the law and its enforcement should be supported for
scientific reasons. I would argue
that the law should be changed back or even better
should use Pennsylvania's range to ensure that these
devices that can send someone to jail for a long time or
can otherwise be a permanent black mark on their record
are as accurate as possible.
If you have been arrested and/or charged with a
DUI/DWI in Branson, Nixa, Ozark, Springfield, Greene
County, Chrisitan County, Taney County, Stone County, or
anywhere in the surrounding area of Southwest Missouri,
please schedule a free consultation today by calling
Josh Garrett at (417) 544-0315.