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Breath Test Calibration Errors Could Lead to Dismissal of 20,000 DUI Charges

Sep 21st, 2016 Breath Testing DUI Defense

A New Jersey Sergeant was recently suspended and charged with records tampering for failing to properly calibrate the state’s alcohol breath testing devices.  This could potentially call into question as many as 20,000 DUI cases in the state.

But this problem is not limited only to New Jersey.  If you are arrested for drunk driving in Michigan, the arresting officer probably asked you to submit to a breath test. The purpose of this breath test is to show how much alcohol is in your body, or put in different terms, to show if you are over the legal limit of .08.  However, in order for this breath test result to be admissible in court, the police have to show that they set up, calibrated and properly maintained the breath test.

One way to show this is to test the breath test machine against a known standard.  There are two options for this, one is wet bath calibration and the other is dry gas calibration. Both methods have their advantages and disadvantages.  In the New Jersey case, the Sargent failed to use a NIST traceable thermometer prior to starting the actual calibration of the state’s breath testing equipment.

Michigan uses the DataMaster DMT for breath testing throughout the state, and the Michigan DMT units use dry gas for its calibration checks. Calibration is done by the 120-day inspector or at the factory during service or before the unit is placed into service.  Thus, the only way in Michigan to know if the proper equipment, such as a NIST traceable thermometer, was used would be to request and hold an evidentiary hearing, or to explore this issue during trial.

Michigan’s breath testing is governed primarily by the state’s administrative rules for breath testing.  These rules dictate what must be done, and have the force of law.  Officers are also trained in these matters, and training manuals include additional requirements.  These are some of the things that might inform a defense attorney’s cross-examination of the involved witnesses.

If the judge handling your drunk driving case is persuaded that the police have failed to follow their training or have failed to follow their administrative rules in the administration of the breath test, or in the maintenance of the breath testing equipment, and believe that this failure goes to the admissibility of the breath test, then this could lead to the DUI case being reduced or in limited circumstances, even dismissed.