In New York and New Jersey—as well as many other states—a person who refuses a roadside breath test to determine intoxication levels can have his/her license suspended and be arrested. However, a new report from the New York Times shows that states all over the country are tossing breath test results due to what has been found to be huge flaws in the calibration, programming, and overall design of the machines.
Even worse, devices used in police stations, which are supposed to be more accurate than the roadside tests, have similar problems. The result is that courts all over the country—including in NY and NJ—are tossing out drunk driving cases whenever the validity of the tests is called into question.
The Times report revealed that manufacturers of breath testing machines have gone to great lengths to shield the inner workings of the devices from any kind of scrutiny. In rare instances where the software and hardware have been analyzed by outsides experts, including in a 2007 NJ Supreme Court case, the shortcomings were often disregarded. The result of the aforementioned case was that Dräger, the machine manufacturer in question, started advertising its products as the only ones on the market with software that “has been reviewed by independent third parties and approved by a Supreme Court decision.”
In 2009, Washington hired independent experts to dissect and analyze the breath testers it planned to purchase replacements to outdated ones used in police stations statewide: Robert Walker, a former Microsoft OS programmer and Falcon Momot, a renowned hacker and software vulnerabilities expert. Together they assembled a report titled, “Defective Design = Reasonable Doubt” and noted that the devices failed to control for breath temperature, which can lead to widely varying results on the same alcohol concentration, among other issues. When faced with the option of spending more money to purchase a sensor that would fix this particular problem, state officials opted to “throw caution to the wind” and forgo the patch. The manufacturer also demanded that all copies of the report be destroyed (NYT managed to obtain one anyway).
But things are beginning to change. In December 2016, police Sgt. Marc W. Dennis was indicted on criminal charges when it was found he falsely certified that he had followed proper procedures for calibrating the Alcotest units the state used. Two years later, the NJ Supreme Court ruled that the results from Alcotests could not be trusted. As a result, more than 20,000 DWI convictions have been called into question.
Many in New Jersey have begun to hire attorneys to overturn prior DWI convictions. In NJ, a DWI conviction remains on one’s driving record permanently. A person can also face jail time and have his/her license revoked for up to one year. Subsequent convictions can carry even more harsh penalties.
Similar rulings have been taken place in Massachusetts, Washington, and many other states. New York’s court system has not yet taken up a major case relating to breath tests, but individual judges are tossing out cases whenever the reliability of the tests is called into question.
Even in light of the questionable accuracy of breath tests, it remains against the law to refuse one in New York and New Jersey. Drivers can face a one-year license suspension (even if they are acquitted of the underlying DWI offense) and a $500 fine, plus be taken into custody. As such, it is generally not advisable to refuse a breath test. However, a person who is charged with DWI in New York or New Jersey as a result of a breath test, in part or in whole, should contact an attorney to determine if the case can be dismissed or the charges reduced.