April 29, 2016 – by Liam Scully
I believe that someday the breath testing devices will be completely discredited as unreliable. But for now we are still fighting these results on a case by case basis. But there are more successful challenges being made every day. The most significant one recently is an out of state case, but still has implications here in Massachusetts. This past week, a Vermont judge ruled that a drunken-driving breath test taken more than two hours after police stop a driver is too inexact to be considered evidence in court. The judge threw out delayed breath test evidence in 25 drunken-driving cases in a decision that is expected to be appealed to the Vermont Supreme Court. The judge found that the Vermont Forensic Laboratory’s standards for calculating blood-alcohol content hours after a motorist’s encounter with a police officer are too inexact to meet the burden of proof in a courtroom. In reaching this decision, the judge cited the testimony of a defense expert, as well as a senior forensic chemist at the state lab, who acknowledged under questioning that people differ in the rate at which alcohol dissipates from their system, and the dissipation rate for a person can vary on different days. Therefore, using a benchmark rate does not prove the calculation is accurate for the individual defendant, the judge found. A dissipation rate of 0.015 may be a reasonable average, but the judge cited testimony that the real rate in individual defendants can range from 0.01 to 0.02 or more. Too many people accused of failing a breath test give up or don’t have the resources to fight back. But there are many ways to successfully challenge breathalyzer results and this case is just one good example.