One key piece of evidence that the prosecution uses when building a DUI case is the driver's blood alcohol content (BAC). Typically, drivers who are arrested will be asked to submit to either a breath or blood test in order to measure the amount of alcohol in their system. The legal limit in most states is 0.08%. (Utah recently decided to lower its BAC limit to 0.05.) If the test shows that a driver is at or over the legal limit, he or she can be charged with a DUI.
Because a driver's BAC level is such a crucial part of the case, it's imperative that the testing machine is calibrated properly so it can give correct readings. However, this does not always occur and mistakes are made. Recently, a Massachusetts District Court judge ruled that "because of a lack of reliable standards by the Massachusetts Office of Alcohol Testing, any breathalyzer test calibrated between June 2012 and September 2014 cannot be used by the state in any criminal prosecution unless the prosecution proves that that particular test was properly calibrated."
This ruling impacts at least 535 individual DUI cases, but could possibly end up affecting as many as 20,000. The 535 cases that are a part of the case won't be overturned automatically. Rather the cases will "go back to the courts where they came from to be tried using [the judge's] guidance that the breath tests cannot be automatically considered reliable."
Massachusetts is not the only state that is dealing with this issue. In July 2016, the Philadelphia police were notified by Joseph Kelly -- an attorney -- that the calibrations they were using had legally expired. The department immediately re-calibrated their machines, correcting the error. However, a number of cases from the first half of 2016 were affected and the police department asked the D.A.'s office to review those cases.
Another state dealing with machines in need of re-calibration is New Jersey. In November, NJTV News reported that a federal class action lawsuit was filed that is "seeking to throw out the DUI convictions of more than 20,000 New Jersey drivers who may have been wrongly prosecuted because of botched calibrations on breathalyzer tests."
State Police Sergeant Marc Dennis was "indicted for official misconduct and records tampering after authorities accused him of skipping a required step in the calibration of the machines." According to NJ.com, "Dennis is accused of deliberately omitting a temperature check in re-calibrating Alcotest devices, which are used by local police to check the blood-alcohol level of accused drunken drivers." Prosecutors stated that this step was not "scientifically necessary," but it was a required procedure. New Jersey's Division of Criminal Justice expects there to be "a potential glut of challenged convictions" because of the sergeant's misconduct.
As these stories show, it is imperative that the testing mechanisms be in proper working order so as to return a fair result. If you or a loved one has been charged with a DUI in Washington, contact attorney Aaron Wolff today.
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