Researchers Say a Breathalyzer Has Flaws, Casting Doubt On Countless Convictions (zdnet.com)

An anonymous reader writes: The source code behind a police breathalyzer widely used in multiple states -- and millions of drunk driving arrests -- is under fire. It's the latest case of technology and the real world colliding -- one that revolves around source code, calibration of equipment, two researchers and legal maneuvering, state law enforcement agencies, and Draeger, the breathalyzer's manufacturer. This most recent skirmish began a decade ago when Washington state police sought to replace its aging fleet of breathalyzers. When the Washington police opened solicitations, the only bidder, Draeger, a German medical technology maker, won the contract to sell its flagship device, the Alcotest 9510, across the state. But defense attorneys have long believed the breathalyzer is faulty. Jason Lantz, a Washington-based defense lawyer, enlisted a software engineer and a security researcher to examine its source code. The two experts wrote in a preliminary report that they found flaws capable of producing incorrect breath test results. The defense hailed the results as a breakthrough, believing the findings could cast doubt on countless drunk-driving prosecutions.

Comments

...which is why

[Anonymous Coward]

They take blood now, and refusal is an automatic conviction. The breath thing is just to let them know if they need to go to the trouble of calling a phlebotomist to the scene.

Re:...which is why

[cayenne8]

They take blood now, and refusal is an automatic conviction. The breath thing is just to let them know if they need to go to the trouble of calling a phlebotomist to the scene.

Depends on the the laws of your state, thankfully.

Sticking a needle into your skin by orders of the "state" is a bit invasive.

Re:...which is why

[rogoshen1]

FYI, if there's even a SHRED of doubt, always opt for the blood test. Especially considering things like mouth wash, or ketones can result in a false positive. As an added bonus, that extra time waiting for the blood draw means your BAC is decreasing.

Thanks MADD, you co-opted the 5th amendment with your prohibition agenda.

Re:...which is why

[Anonymous Coward]

You agree to let them be invasive when you accept your driver's license.

Re: ...which is why

[Anonymous Coward]

Also, I would ask for an extra vial be taken for independent analysis (by my lawyer).

Don't know if you can do that, but frankly, it seems right.

Re: ...which is why

[Anonymous Coward]

In my opinion, MADD rewards bad behavior:
https://www.11alive.com/article/news/investigations/the-drug-whisperer-drivers-arrested-while-stone-cold-sober/502132144

Re: ...which is why

[reanjr]

Not true. They simply revoke your license. You are not required to submit to any needles going in your body.

Re:...which is why

[Anonymous Coward]

Thanks MADD, you co-opted the 5th amendment with your prohibition agenda.

You have no idea how true this is. In New Jersey, when they arrest you, they read this laminated card with a a detailed description of how and why you have no rights, why you must submit to a breathalyzer on the spot or automatically be found guilty as well as face additional (double) penalties for refusing, and how you have no right to consult with a lawyer before deciding. You are also not allowed to ask any questions or clarifications. If you have any questions, they simply repeat the card verbatim.
In addition to the completely obvious unconstitutionality of it, they see no hypocrisy in how the state's official position is that you "consented" to the test, even though if the test does come up positive, that proves that your consent was given while you are drunk, which in any other part of the legal system means that you did not consent.
Then of course there is the issue of how haphazardly calibrated these machines are, how wildly inaccurate they are, and so on.
Even still, even when the prosecution can't prove probable cause, and even if they lose the evidences for 9 months while they jerk you around, with constant continuances, they still end up convicting 100% of the time. No jury BTW, just a judge who is buddies with all the cops.
Meanwhile, if you are rich, you can just bypass it all as your expensive lawyer winks at the judge and you don't even lose your license.

Our "justice" system is a complete joke.

Re: ...which is why

[Anonymous Coward]

Considering you lose that license for as long if not longer when you submit and get convicted, I'm not sure it's really even a punishment.

Never agree, lose the license and keep your record clean.

Re: ...which is why

[kobaz]

Or don't fucking drive DRUNK. You fucking asshole.

Re:...which is why

[AvitarX]

Depends on where.

In PA the field breathalyzer is about establishing probable cause to take one to the station, but there is a calibrated one at the police station that you cannot refuse and works as evidence in court.

Re:...which is why

[schematix]

There is a correction factor added to compensate for the time since the traffic stop that considers the gender and size of the person. If your blood tests 0.079 an hour later, you're screwed. You can also be screwed at lower levels. Delaying is not in your favor. If you think you're going to be over the limit, refuse the test. If you think you're gonna be close, refuse the test. Only take it if you know you're going to pass.

Re:...which is why

[cayenne8]

You agree to let them be invasive when you accept your driver's license.

Not true, again, it depends on the laws of your state.

It has been awhile since I last reviewed mine, now that I think about it, but from my last look...and after talking to a local lawyer, here are some things if you happen to get pulled over.

First, do NOT take any field sobriety tests, especially the walking the lines, touching the nose, etc....especially if you think you might be close to the limit. All they are doing there, is collecting evidence against you on camera, that's it.

Don't help them out.

Refuse a field breath test.

Same reason as above, you're only helping them collect evidence against you.

If you think you are at all close to legal levels, while being polite, do not talk much. Answer few to no questions about where you were, what you've done and for certain do not tell them you have been drinking.

And face facts, if they DO think you are impaired, nothing you can say or do will keep them from taking you in. If this is your situation, you basically need to just put your hands out for the cuffs and quietly go for a ride, you are doing to do that regardless of any actions you may try, you cannot talk your way out of it, etc.

Again, do NOT help them gather evidence against you.

Last I looked, in my state, if this is your first offense, you can and SHOULD refuse all breath and blood tests. The only time they can force you to take a blood test, is if you were in an accident, and someone was hurt/killed, then you can be compelled.

Otherwise, if this is first offense you can refuse all tests, and you should.

Then, get a good lawyer, and if you've done your job of not helping them gather evidence against you, he/she will likely get you off at the most with a wreckless driving.

Of course, this sucks, but it is better than a DWI.

If a 2nd time happens, and well...you should have learned your lesson the first time....do the same and do not help them gather evidence against you...this time if you refuse the breath test, there are some consequences. They recently passed some new laws and I honestly have not studied them....but to the best of my knowledge, you can at least get a lawyer to talk them into a limited license to get to/from work and such.

Now....should be you driving and drinking in the first place?

Well, in this day in age...no. There is uber...it is cheap, plentiful and they can cart your drunk ass anywhere. These days, it just isn't worth it to risk getting caught.

But I mention it, because, well...shit happens. And with the BAC levels reduced to such stupidly LOW levels (0.08)....you can get very close to the legal limit as a grown man, having only 2-3 glasses of wine with a meal....and they can bust you, yet you may not even be close to impaired.

So, keep that in mind.

Again...this varies from state to state. If you drink, you should know way ahead of time, what the laws in YOUR state are, and if possible, talk to a lawyer to know what to do and not to do.

And really with ANY interaction with the police, the best thing you can do is NOT say anything....your right to keep silent is the best thing going for you, and remember the police, no matter what they say, are NOT there to help you, they are there to try to gather evidence to charge someone (possibly YOU) with a crime.

Be polite, comply...but don't help them out.

Re:...which is why

[cayenne8]

FYI, if there's even a SHRED of doubt, always opt for the blood test. Especially considering things like mouth wash, or ketones can result in a false positive. As an added bonus, that extra time waiting for the blood draw means your BAC is decreasing.

Also, ask for an atty present for any fluid draws...this can also stretch the time.

Re:...which is why

[spiritplumber]

Here's the entirety of what you say: "I am happy to cooperate, as soon as my lawyer shows up." For everything else, you no habla Ingles (Or Spanish either).

Re: ...which is why

[Anonymous Coward]

You don't have to be driving drunk to be pulled over and accused of it.

Re:...which is why

[Hognoxious]

at the most with a wreckless driving.

But what if there is a wreck?

Re:...which is why

[The Good Reverend]

You don't just get to delay until you're sober - they have a formula for determining your BAC at the time of your arrest, even if you take the blood test hours later.

Re:...which is why

[Anonymous Coward]

Which is when they read the card again, emphasizing the part where it says that you are not allowed to consult with a lawyer first, and that asking for a lawyer constitutes a delay, and a delay constitutes a refusal, and a refusal == automatic guilt and double penalties.
So you repeat your lawyer schtick, and he repeats the card, emphasizing the part that you are not allowed to delay. You must immediately consent or it is considered refusal. Round and round you go.

Re:...which is why

[Oswald McWeany]

But I mention it, because, well...shit happens. And with the BAC levels reduced to such stupidly LOW levels (0.08)....you can get very close to the legal limit as a grown man, having only 2-3 glasses of wine with a meal....and they can bust you, yet you may not even be close to impaired.

I don't think that is stupidly low at all. I've seen people get visibly impaired on a couple of glasses of wine. Not drunk-drunk, but to a point where it obviously would impair them to a degree. Most people won't be majorly impacted by 2 glasses of wine, but they have to set the levels that low to catch the sizable minority that are.

Re:...which is why

[Anonymous Coward]

Sadly, getting the blood draw is often not an option

Re:...which is why

[cayenne8]

I don't think that is stupidly low at all. I've seen people get visibly impaired on a couple of glasses of wine. Not drunk-drunk, but to a point where it obviously would impair them to a degree. Most people won't be majorly impacted by 2 glasses of wine, but they have to set the levels that low to catch the sizable minority that are.

It shouldn't be the lowest common denominator, that opens up WAY too broad of a dragnet.

Until they can measure individual levels of true impairment, these levels need to be more reasonable...the 0.1 levels that worked for decades should be re-instated.

Re: ...which is why

[CoolDiscoRex]

Yep, so set up a society where motor vehicle access = access to most everything else ... employment, food shopping, etc. Then, declare driving 'a privilege'. You can impose most anything on them, then. After all, they don't have to have a job. That's a personal choice and they agree to give up things to the government in exhange for one.

Re:...which is why

[cayenne8]

You don't just get to delay until you're sober - they have a formula for determining your BAC at the time of your arrest, even if you take the blood test hours later.

ANYTHING you can do to help your case, you should do......a lower number after time, you're lawyer can explain/argue much better than a higher number immediately after arriving at the station.

Formula or not, a good atty can argue more on your behalf the more you give them a chance.

Re:...which is why

[Anonymous Coward]

In addition to the completely obvious unconstitutionality of it, they see no hypocrisy in how the state's official position is that you "consented" to the test, even though if the test does come up positive, that proves that your consent was given while you are drunk, which in any other part of the legal system means that you did not consent.

Their argument is that you consented when you got your license.

Re:...which is why

[Anonymous Coward]

FYI, if there's even a SHRED of doubt, always opt for the blood test.

My ex-cop driver's ed teacher said you'd be amazed how often the sample gets lost in the mail.

Assuming they still mail it. That was a while ago.

Re:...which is why

[Oswald McWeany]

I don't think that is stupidly low at all. I've seen people get visibly impaired on a couple of glasses of wine. Not drunk-drunk, but to a point where it obviously would impair them to a degree. Most people won't be majorly impacted by 2 glasses of wine, but they have to set the levels that low to catch the sizable minority that are.

It shouldn't be the lowest common denominator, that opens up WAY too broad of a dragnet.

If it were 1 in 100 that 0.8 was too high to drive; I would agree with you. If it is 1 in 4 then, absolutely, even if 3 can drive safely at that limit- 25% not being able to is a significant number. 0.8 is actually higher than a lot of states in the Union, and higher than a lot of Asian and European countries.

I have a simple rule. If I have drunk any alcohol; I don't drive. Even though after a couple of beers or a couple glasses of wine, I don't feel impaired, I don't drive if I've drunk anything. It's really not worth it. It's not worth being impaired even if I feel fine; it's not worth getting arrested if my blood alcohol is higher than I think.

It's not like it's that inconvenient to skip a drink every once in a while if you have to drive.

Re: ...which is why

[Anonymous Coward]

Great country you have there. My experience in Germany:

I went out with some people for dinner. Had a half litre of beer. Stayed up late and at 1a.m. decided to drive over to a friends place that lived a bit further out.

The police stopped me and asked if I had been drinking. I had been blissfully unaware of some local festivities and they were out and about checking as many people for drunk driving as they could. I said Iâ(TM)d had that beer. They politely asked when I had had that and when I truthfully answered it had been around 7 maybe they wished me a good night and let me drive on. No tests of any sort done.

Re:...which is why

[Registered Coward v2]

Having served on a jury for a drunk driving case, I would not convict on breathalyzer alone. In the case, the guy failed around 8-10 roadside sobriety tests in spectacular fashion and was obviously impaired by his speech. (We had a body cam video). The lawyer’s argument was the roadside tests have a 25% false positive rate so there was a 1 in 4 chance his tests were false positive. Unfortunately, she put an engineer and economist on the jury and we pointed out that .25 to the eight is infitessmally small and thus her arguement was bogus. Ultimately, the video did him in, along with his admission to having a few drinks. Moral of the story: Get a good lawyer, don’t argue bogus math if you let on the jury people who understand math and never admit anything during a stop.

Re:...which is why

[The Good Reverend]

ANYTHING you can do to help your case, you should do

I would recommend NOT drinking and driving. There's zero excuse. Of course you could be pulled over or arrested for seeming drunk, but if you're not drinking, you're not going to be busted after the test.

Re:...which is why

[thegarbz]

Especially considering things like mouth wash, or ketones can result in a false positive. As an added bonus, that extra time waiting for the blood draw means your BAC is decreasing.

That's a lovely trap for idiots. In my state if you get pulled over at the booze bus, and request a blood test it'll be done in about a minute. If you blow over the limit you get to sit down for 10-15min before re-blowing precisely to gauge if you're blowing a temporary false positive.

And if you're relying on something to get you BAC down to pass the cops then behalf of the rest of the road users, fuck you you drink driving fuck.

Re:...which is why

[whoever57]

he/she will likely get you off at the most with a wreckless driving.

I sincerely hope that all my driving is wreckless.

I think you mean "reckless".

Re:...which is why

[sjames]

In some places they do. In others, the breathalyzer is treated as iron-clad proof with no need for further testing.

Re:...which is why

[mark-t]

There can, in fact, be legitimate reasons why they may not be permitted to take blood from you unless the person doing it is a licensed physician and more advanced immediate medical attention is available in the event of any complications. I know people like this. I don't know the name of the condition, but they have to wear a tag on their arm when they go out just like a person with diabetes.

And for that matter, I've known a handful of people who completely abstain from alchohol, but will quite consistently blow over the legal limit in a breathalyzer, although blood analysis shows there's no alchohol present.

Although I don't know anyone with both conditions, I can fairly easily imagine a situation where both circumstances apply to a single person.

Re:...which is why

[Falconnan]

Technically it's not a conviction. It is considered a violation of the terms of licensing. Under US law one cannot be convicted except by a jury (or judge if a jury is declined). In some states refusal is a separate crime, but again, not an automatic conviction.

Re:...which is why

[mark-t]

What would they do if your lawyer was in the car with you?

Re:...which is why

[Falconnan]

This method of avoiding a false positive could be improved by the following:

1. Two different machines testing
2. Machines must be from different manufacturers
3. Keep the delay and re-run mentioned

Reasonable doubt relies on the notion that we have minimized statistical chances of error. This regimen may be tedious, but we can make sure the innocent are not caught up with the guilty. But yeah, don't be drunk behind the wheel. I have a little sympathy for the person on the very edge of the range, but none beyond.

Re: ...which is why

[whoever57]

Also, I would ask for an extra vial be taken for independent analysis (by my lawyer).

Smart move. There was a case recently (although I can't find a record of it), where a DUI case was thrown out because the person whose blood was taken was jailed and his possessions were stored, but his blood sample wasn't refrigerated.

Re: ...which is why

[TheRealMindChild]

They simply revoke your license.

Naive. Don't try this folks. You will forfeit you license under the civil contract you broke with the Department of Transportation. And they *WILL* use that as evidence against you in a criminal case.

Some people think they are so clever until they are *actually* up against the system.

Re:...which is why

[TheRealMindChild]

The only time they can force you to take a blood test, is if you were in an accident, and someone was hurt/killed, then you can be compelled.

Driving impaired is a criminal offense. Refuse all you want. If they have probable cause, you can refuse everything, they are going to arrest you and take your blood anyway. There is no clever way to get yourself out of a DUI.

Re:...which is why

[Anonymous Coward]

In Michigan, you are allowed to opt-out of the road-side breathalyzer. If you do, there the Secretary of State is allowed to revoke your license for up to one year. This is a separate hearing from any convictions you may garner from a DUI, DWI or accident. Insurance pulls this as "3 points" on your license if you refuse. Laws are similar in other places I've lived -- Illinois and New York.

In Michigan, you can refuse to give a blood sample for testing. If the admin at the cop-shop wants to wake up a judge to sign form, they can compel a sample from you. I've not been through the process, but I've had two friends who were -- and they did compel blood samples from them in the middle of the night by the judge's order. One of them got lucky, and the BAC was low (but it looks like they were roofied, which explained why they acted the way they did), and things went away -- but they still lost their license for a year.

Re: ...which is why

[Anonymous Coward]

So you suggest we ditch the lower limit and go by an upper limit instead?

So we don't call people drunk until they die of alcohol poisoning?

Re: ...which is why

[Darinbob]

Doesn't matter if you are guilty or not, ask the police to show a warrant first. If you don't want to defend the rights of all citizens then you stand the chance of losing your own rights.

Re: ...which is why

[Wulf2k]

Circumstantial evidence against you is better than conclusive evidence against you.

I'm pretty sure every lawyer will recommend you decline the test if there's the slightest chance of it being used against you.

I'm not saying it's right, but that's the system.

Re:...which is why

[Anonymous Coward]

That's all good advice but I suspect refusing field sobriety tests may just annoy them and convince them to take you in for a blood draw.

A long time ago before dashcams were common and the legal limit was still 0.1 I cooperated with them. Then they made me sit in my car while they went and sat in theirs for what seemed like an eternity.

When they came back and told me to step out of the car I was sure I was going to be arrested, but instead they told me "If we took you downtown right now you'd probably blow right on the line." (I guess they didn't have a portable unit because they didn't ask me to blow.)

Throughout the entire encounter I was polite and cooperative. They still wrote me a couple of tickets but they let me go regarding the failure to change my address on my license. I think they appreciated my honesty when I told them it was not current.

--

The limit where I live is 0.05 even though it's called a "DWAI" (driving while ability impaired) and it's not as serious as an actual DUI, it's still pretty damned serious.

I've seen too many other people arrested and the legal hassles it has caused them to ever want to risk it again. I actually think it's drivers who don't pay attention or blatantly break other laws while DUI (or who are "extreme DUI" are the ones who wreak the most havoc.

I do my drinking at home now anyway and if I run out a couple of liquor stores near me deliver and even though they charge a lot it's still cheaper than an arrest.

Re: ...which is why

[kobaz]

I would agree to requiring a warrant, that's fine.

My main point was to respond to the AC "Never agree, lose the license and keep your record clean."

If you are driving drunk and are stopped, we as a people have every right to have a history of you on record that you are a clear and present danger to society, whether or not you refuse testing.

Also, if you are driving drunk and are stopped, and the police have reasonable suspicion you are drunk and fail a basic field sobriety test (non-invasive, non-breathalizer), there should be no issue getting a warrant to proceed with intrusive testing.

Re:...which is why

[Anonymous Coward]

They take blood now, and refusal is an automatic conviction.

In the USA, such an "automatic conviction" would be unconstitutional (something something 5th amendment).
On the other hand, refusal to take a test may lead to the automatic suspension/revocation of your driver's license - there's no "right" to drive

Re:...which is why

[Anonymous Coward]

40/50 years ago there were no DWI laws, people just had 'accidents'. Today's world is far different from then. As you stated, it is not worth the 'noise' that you'll get from having alcohol in your system. Average costs are: $5,000 bail. $5,000 lawyer costs. Loss of license. Mandated DWI courses, probation costs, having to take taxis to get back and forth to work/probation.

Leave your car at the bar if you were drinking. Take a taxi/friend to drive you home. Set aside the money to do this and to pay a taxi to bring you back to your vehicle in the morning after you've slept and sobered up. Your car will be there, un-dented and no police involvement. No charges for vehicular manslaughter. It's the way to behave in these days and times, not to mention having to live with the fact that you may have killed innocent people while in a 'functioning blackout".

Re: ...which is why

[Anonymous Coward]

LD50 is 0.44. We've got a ways to go.

IMO the 0.08 limit is still too high. Should be about 0.04, 0.05 tops.

Re: ...which is why

[Anonymous Coward]

Careful about that. Here in Texas, the judge rubber stamps search warrants, and they can withdraw blood by force if need be. In fact, they have a "bondage Barcalounger" just dedicated to strapping someone down to draw blood.

Re: ...which is why

[AvitarX]

That's not true on the east coast.

In states around here, refusal to test is as bad as the worst alcohol score AND there is no first offender/pbj program.

Re:...which is why

[Anonymous Coward]

But I mention it, because, well...shit happens. And with the BAC levels reduced to such stupidly LOW levels (0.08)....you can get very close to the legal limit as a grown man, having only 2-3 glasses of wine with a meal....and they can bust you, yet you may not even be close to impaired.

I don't think that is stupidly low at all. I've seen people get visibly impaired on a couple of glasses of wine. Not drunk-drunk, but to a point where it obviously would impair them to a degree. Most people won't be majorly impacted by 2 glasses of wine, but they have to set the levels that low to catch the sizable minority that are.

If they were impacted, then they were way above the .08, regardless of how many drinks they had. I know I don't feel even remotely close to impaired, basically I feel as though I drank absolutely no alcohol at all, until .12.

Re: ...which is why

[AvitarX]

They have judges at sobriety check points for just that reason.

Re: ...which is why

[AvitarX]

Refusal to submit is a worse crime with equivalent insurance consequences. It does not keep your record clean.

Re:...which is why

[rogoshen1]

I'm saying this as a moderate (at best drinker) -- the .08 limit is pathetically, laughably low in terms of being an ACTUAL fucking public safety issue.
Driving before morning coffee, or while tired is almost assuredly more of an impairment.

It's a political 'thing', and shows us *exactly* what a 'think of the children mindset' results in. I can think of only a few instances where the presumption of innocence and due process for being searched is thrown out the window. DUI checkpoints? What kind of Soviet, GDR type nonsense is that?

Now, it's true -- you probably shouldn't be driving after even a single drink -- BUT if someone blows a .09, should they have their professional and financial life ruined?

Re:...which is why

[Jason1729]

Modern machines can tell ketones from alcohol. And testing procedure to admit results into court is 2 tests at least 17 minutes apart while monitoring the subject to make sure nothing goes in their mouth. The tests must be in good agreement to be admitted into court. That takes care of things like mouth alcohol.

Re:...which is why

[Anonymous Coward]

Thanks, I thought maybe Australia was the odd one out judging by TFS. Breathalyser gives a quick test/don't test indication, followup blood test gives actual reading.

Re: ...which is why

[cayenne8]

Refusal to submit is a worse crime with equivalent insurance consequences. It does not keep your record clean.

Again, it depends on the state you live in, not all states have laws that are so draconian.

Re:...which is why

[cayenne8]

Driving impaired is a criminal offense. Refuse all you want. If they have probable cause, you can refuse everything, they are going to arrest you and take your blood anyway. There is no clever way to get yourself out of a DUI.

Again, depends on your local STATE laws.

What you state is NOT the case in every state....

Just like every state does not require auto inspections, they all work differently with regards to just about all driving laws and regulations.

Hell, the only reason it is now 21 in all states to drink...wasn't a federal law, but due to the Feds threatening to withhold highway funds, otherwise many states would still have legal drinking age of 18, and non-standard speed limits, etc.

It is the same way with regards to impaired driving...it is up to the state, there are no federal standards for this.

Re:...which is why

[Anonymous Coward]

Or dont fucking drink before you fucking drive.

ITS NOT THAT FUCKING HARD TO DO YOU GODDAMN IDIOT

and Slashdot yelling filter can go fuck itself. You damn right I'm yelling at this goddamn idiot

Re:...which is why

[Agent0013]

So you stopped driving years ago and haven't driven since. Great! That is not the person we are talking about here. It is after the alcohol has left your body you decide to drive again. How much is left to measure at that point.

Re:...which is why

[Trailer Trash]

As an added bonus, that extra time waiting for the blood draw means your BAC is decreasing.

Not necessarily. If you gulp down a few beers and quickly go drive, your BAC might be .04% when you get pulled over, and .10% later on.

Re: ...which is why

[Anonymous Coward]

That's the law, but those laws are blatantly unconstitutional if there is no evidence you're driving drunk.

You can't take away people's fourth amendment rights with laws and required "contracts" any more than you can force them to sign a contract before buying a house that says they'll quarter soldiers in their home in peace time.

But unfortunately your local Supreme Court May disagree.

Re:...which is why

[Anonymous Coward]

Their argument is that you consented when you got your license.

If that were true then they wouldn't be sitting you down and asking if you consent or refuse first, they'd just walk you over to the machine and make you do it.

Re: ...which is why

[NormalVisual]

I'm pretty sure every lawyer will recommend you decline the test if there's the slightest chance of it being used against you.

Yup - when was the last time you saw a lawyer or judge submit to a roadside breath test?

Re:...which is why

[david_thornley]

Bad figuring. You're only talking about 0.25^8 if the trials are truly independent. If they were all on one breathalyzer, it's reasonably likely that the breathalyzer was bad.

Re:...which is why

[ArchieBunker]

You'll be cuffed in the back of the car before you finish that sentence.

Re: ...which is why

[AvitarX]

That holds, to carrying degrees around here.

Basically though, "speech was slurred, smelled alcohol" will pass muster in general. Police eyewitness is good enough evidence, as is a traffic violation in general.

Re:...which is why

[Bert64]

And what if your license was not issued by that state?
Your license may be issued by another state, or even in another country. I've frequently rented cars in foreign countries using an international license.

Re:...which is why

[Anonymous Coward]

.08 is actually pretty high, it hasn't been that high here since the 70's

to answer your last question

yes, most definitely yes, they should, since they obviously have no issue killing people

Re:...which is why

[Anonymous Coward]

The solution is clearly to be a raging alcoholic. The you can probably maintain function at several times the 0.08 limit. If you can't drive like Grand Theft Auto V at 0.3, you're doing it wrong!

Re:...which is why

[Anonymous Coward]

The only way that is remotely valid is to take the samples, then wait until you're 100% sober, but verify that your metabolism of alcohol is the same as it was at the time of the alleged drunk driving. If they're going to use that kind of compensation calculation they should be required to prove that it is valid for the defendant, not merely 95% of the population or whatever the hell it is they're going.

But justice in America has become a foreign concept.

Re: ...which is why

[sjames]

It's worth noting that while simply accepted today, when introduced the need for a license to drive was considered somewhat controversial.

Re:...which is why

[Registered Coward v2]

Bad figuring. You're only talking about 0.25^8 if the trials are truly independent. If they were all on one breathalyzer, it's reasonably likely that the breathalyzer was bad.

Road side sobriety - the walk the line, close eyes touch nose, horizontal and vertical gazing nystagmus, etc. so they were independent tests.

Re:...which is why

[sjames]

If you're going with the LCD, perhaps it should be zero. I see people with zero alcohol in their systems who are less coordinated than most people with 0.08 or higher and they're still allowed to drive.

Re:...which is why

[Anonymous Coward]

they see no hypocrisy in how the state's official position is that you "consented" to the test, even though if the test does come up positive, that proves that your consent was given while you are drunk, which in any other part of the legal system means that you did not consent.

Uhh no. That's exactly how it doesn't work. IAAL.

You can consent to plenty of legally binding things while inebriated. Make and enter into contracts, engage in consensual sex, all sorts of things. If it weren't so, casinos and strip clubs would go out of business as everyone demanded their money back the next day.

The exception is if you are so drunk that you were completely incapable of knowing what you were doing. Basically that means you have to be passed out. Otherwise anything you did is still fair game.

Re:...which is why

[thegarbz]

I'm saying this as a moderate (at best drinker) -- the .08 limit is pathetically, laughably low in terms of being an ACTUAL fucking public safety issue.

Nope, You're saying this as someone who either is an excellent functioning alcoholic, or as someone who is dangerously unaware of their own dysfunction. I'm betting it's the latter. There are a myriad of people out there who barely cope with the 0.05 limit that most countries have in place. There is a myriad of research that no consumption of alcohol what so ever comes without some form of measurable impairment. And there's daily statistics to show that even without impairment humans are causing enough problems behind the wheel. There's a reason why anyone driving in professional situations has this limit further reduced in many countries to 0.02.

BUT if someone blows a .09, should they have their professional and financial life ruined?

No. I agree no one's life should be ruined. But that has zero to do with BAC rules and everything to do with America's prison industrial complex that makes everyone in the country a horrid criminal. Fine people, prevent people from moving on, remove points from their license, but major events should be reserved for those who flout the law continuously, and I say major events because being disqualified from driving is major, but having a criminal conviction is life ruining and there's petty few people who deserve that from drinking alcohol without consequence (by that I mean they don't cause a huge accident or kill someone).

Re:...which is why

[david_thornley]

As long as he wasn't convicted on the basis of bad math, I'm only mildly unhappy about it. I still don't like bad math, being a bit of a math addict.

Re:...which is why

[Registered Coward v2]

As long as he wasn't convicted on the basis of bad math, I'm only mildly unhappy about it. I still don't like bad math, being a bit of a math addict.

No. It wasn't bad math since each was an independent event, just a bad argument by the lawyer. I had no doubt he was guilty, based on all the facts brought up at trial. It almost seemed as if the cop was giving him a chance to prove he was sober by retesting him repeatedly but the guy kept failing them. I was amazed the lawyer made that argument when she let people on the jury who thought math was fun and would see the fallacy in her argument. Perhaps she hoped she could sway one jury member and get them to hold out; that didn't happen. The good news was it took us a long time to agree on a verdict, no one simply wanted to get it over with but took their responsibility seriously. I later found out from the prosecutor that this wasn't his first time found guilty of DUI either, they just can't bring that up in court.

Re:...which is why

[spiritplumber]

That occasionally happens regardless of whether you've done anything wrong or not, especially if you're black or an immigrant. Like every other unwanted but unavoidable interaction: be polite, be professional.

Re:...which is why

[Takalow]

More than half of all states have the legal authority to enact no-refusal DUI enforcement initiatives. In my state, if you refuse, it is an automatic conviction and you lose all driving privileges for one year, and then must have an intoxilyzer in your vehicle for a year after that. My sister-in-law attorney advises to never refuse. You have no recourse if you refuse. You can often get the sentence reduced, but never if you refuse.

Re:...which is why

[Anonymous Coward]

You have no idea how true this is. In New Jersey, when they arrest you, they read this laminated card with a a detailed description of how and why you have no rights, why you must submit to a breathalyzer on the spot or automatically be found guilty as well as face additional (double) penalties for refusing, and how you have no right to consult with a lawyer before deciding. You are also not allowed to ask any questions or clarifications. If you have any questions, they simply repeat the card verbatim.
In addition to the completely obvious unconstitutionality of it, they see no hypocrisy in how the state's official position is that you "consented" to the test, even though if the test does come up positive, that proves that your consent was given while you are drunk, which in any other part of the legal system means that you did not consent.
Then of course there is the issue of how haphazardly calibrated these machines are, how wildly inaccurate they are, and so on.
Even still, even when the prosecution can't prove probable cause, and even if they lose the evidences for 9 months while they jerk you around, with constant continuances, they still end up convicting 100% of the time. No jury BTW, just a judge who is buddies with all the cops.
Meanwhile, if you are rich, you can just bypass it all as your expensive lawyer winks at the judge and you don't even lose your license.

Our "justice" system is a complete joke.

Government in the USA - federal, state, and local - routinely violates the Bill of Rights.

Infringement of fundamental rights "under the colour of law" has been both a criminal offence, and grounds for civil suit, under US federal law for a very long time.

Which means the police are not just violating their oaths to uphold the law, they are engaging in criminal conduct when they do this.

There are laws on the books to deal with criminal conduct by government, and they are completely ignored in most situations. It is the classic problem in law: Quis custodiet ipsos custodes?

The world was given a lesson about what people supposed to do when they are asked to act under illegal law at a place called Nuremberg. For some strange reason, within the USA, that lesson has not sunk in.

Good luck getting anything done about that. In the majority of circumstances, crime does pay - as long as you are a lawyer or you're in the government - and especially if you're a politician. Until the public is willing to insist on ethical government, and ethical practice of law, the law-breaking by government will continue.

Time to stop watching TV, stop playing computer games, and start paying attention to what's going on - and don't let them play the "divide-and-conquer" game: both parties are complicit.

Re: ...which is why

[reanjr]

On the other hand, if you can regularly pass physical roadside sobriety tests even when you blow above the limit, then refusing the breathalyzer - or at the very least, demanding a blood test - can be a smart move.

Re:...which is why

[Anonymous Coward]

I can drink a lot of alcohol and drive a car better than most "sober" people.

I am a programmer. After even 1 beer, my ability to program is affected.

I actively choose to not drink a single beer if I will be driving. Why? Because even though I am a better driver when drunk than most people who are sober, I realize shit happens and I want to be at the absolute top of my game when that shit happens.

This policy has avoided accidents that any normal human driver would have succumbed to.

Re:...which is why

[david_thornley]

Continued trials with the same equipment and circumstances aren't independent. The certainty from the Breathalyzer tests was not much over 75%.

Re:...which is why

[Registered Coward v2]

Continued trials with the same equipment and circumstances aren't independent. The certainty from the Breathalyzer tests was not much over 75%.

Except,as I have pointed out, it was not using any equipment, but rather a series of roadside tests such as walk 17 steps in a straight line while counting them, then turn around and walk back... extend arms and touch nose with eyes closed... VGN and HGN, etc. The only thing in common was the condition of the driver and in some cases relating the same test after failing it previously. This wasn't a case where some piece of external equipment was not properly calibrated and failing in the same manner repeatedly; but failures of different tests. Had it been repeated breathalyzer tests then the argument may have been valid. Even if you take out the repeated tests that were failed (repeatedly) the probably of all being false positives and thus him being sober is .00098, small enough not to constitute reasonable doubt in our minds.

The real question, for me, was why would an attorney chose, as the one point they want jurors to focus on to acquit, is clearly mathematically invalid AND put people on the jury that understand the underlying math? If she was going to make that argument offer something besides math as a reason for a false positive, such as a health or physical condition that generated the results while sober enough to drive. That is especially true when you know the video is going to be played in court and your client seems to think 15 is the number after 12, forgets the directions halfway through the test, and pokes himself in the forehead trying to touch his nose, as some examples of what we saw. The failures weren't borderline.

Not in Europe

[Ubi_NL]

In .nl at least, these breathalyzers are used by police to do a quick test only. If the result is positive, the suspect is carted to a police station where a much more accurate machine is used to determine the blood alcohol levels. Only that ladt number is used as evidence.

I was assuming all countries had similar methods.

Re:Not in Europe

[war4peace]

Same here in Romania.

Re:Not in Europe

[Anonymous Coward]

Same here in Wakanda.

Re:Not in Europe

[zifn4b]

Same here on Mars.

Re:Not in Europe

[will_die]

It really depends on the state. One major difference is that in the US taking of blood is consider unreasonable search so police have to show a reason or you have to volunteer to give it. Also in most US states the legal limit is higher than Europe. there are a few states that use the 0.05% limit but that is usually for minors. Everywhere else the limit is 0.08%
In the majority of states you will require you to blow when stopped(where this machine looks to be used), that reading is worthless except to show that you had alcohol in your system; or you can request a blood test or refuse which means you automatically loose your license. At that point, if positive, you would be arrested. You will then be taken to the police station and required to blow into a more exact system and if below legal limit you are freed otherwise that previous arrest is still in effect and you will probably be prosecuted.
the defense claim here is that the people were arrested because of faulty equipment and because of that they would of never been taken in for a blood or additional test. Since they should of never been arrested those additional tests were illegally taken and need to be thrown out and any convictions based on those need to be dismissed.

Re:Not in Europe

[tempmpi]

A blood test is also considered a search that requires consent or a warrant in Germany. But there is always a judge on duty for quickly granting a warrant to allow the blood test, even if the suspect does not agree to the test. A positive breathalyzer is considered reason enough to grant a warrant.

Re:Not in Europe

[Actually, I do RTFA]

I'm not sure if it's required throughout the US (it varies state by state). However, I think you can request it throughout the US.

Re:Not in Europe

[CrimsonAvenger]

you automatically loose your license

Lose.

they would of never been taken

would've

The inability to spell on /. seems to be higher than in my daughter's elementary school class....

Yeah, yeah, I know. Spelling isn't important. Get off my lawn!

Re:Not in Europe

[Ogive17]

In the US, you don't get pulled over unless there is reasonable suspicion that some law was violated. I am also not aware of any state that charges someone based only on the results of a roadside breathalizer machine. Those results are usually used in conjunction with other sobriety tests along with visual accounts from the officer.

I have a hard time believing many, if any, convictions are overturned. My opinion is people who were arrested at DUI checkpoints are the only ones with a case, as there was no other law being broke at the time they were checked.

Re:Not in Europe

[Hognoxious]

I was assuming all countries had similar methods.

All civilised countries do.

It's amazing how many people rant about seeing the source code for breathalysers (in case there's some hidden DWB routine or something) while actually believing in field sobriety tests which are purely subjective and also totally fucking rubbish. Disclaimer: I can't stand on one leg for more than two seconds if I'm stone cold sober two hours & three coffees after waking from the best night's sleep ever.

Re:Not in Europe

[Anonymous Coward]

Seems like a bogus argument. Basically they want the roadside equipment to be at least as accurate as the "at the station better and more accurate" equipment. Reasonable cause doesn't mean you have slam dunk conviction assured proof. It just means reasonable steps were taken before more legally "invasive" methods are allowed. I'm kind of sick of the law profession making it sound that perfection is both possible and required. All measurements have a certain degree of error. Saying that there is a possibility of error is always true and therefore meaningless. The real questions are how prone to error and what is a reasonable margin.

Re:Not in Europe

[Anonymous Coward]

In the US, you don't get pulled over unless there is reasonable suspicion that some law was violated.

Driving while black in a white/rich neighborhood or anywhere in a nice car.

I have a hard time believing many, if any, convictions are overturned.

As always, it's going to be a case-by-case basis. If the roadside breathalyzer reads above the limit but blood tests below, is it because of the time to take blood or a faulty machine? Do we trust sobriety tests (which are often subjective) from an officer that has to recall a stop that happened 6 months or a year ago? Exactly what the report exactly says probably matters.

My opinion is people who were arrested at DUI checkpoints are the only ones with a case, as there was no other law being broke at the time they were checked.

They're guilty of driving through a DUI checkpoint, which clearly proves they're not in America.

Re:Not in Europe

[squiggleslash]

Same here on the Ringworld.

Re: Not in Europe

[Anonymous Coward]

20 shootings, 7 dead in 24 hours in one neighborhood. You Wakandans got bigger problems. Quit gettin Thanos'd.

Re: Not in Europe

[Anonymous Coward]

Average Americans are dumb as Trump. Even then it's amazing how many basic grammatical errors they keep on making, even though they should have seen the corrections umpteen times. If it's any consolation, things are not better in other countries and languages.

Re:Not in Europe

[Pascoea]

The inability to spell on /. seems to be higher than in my daughter's elementary school class....

The punctuation around here is horrible as well. Who uses ellipsis when not desiring to omit irrelevant portions of quoted material? And a period after ellipsis? The world we live in today, it's gone right to hell.

Re:Not in Europe

[Jason1729]

It's the same as that in Canada. We use the Alcotest 7410 as a roadside screening device and the Intoxilyzer 7000 to do the actual certified test. I assume most of the worlds works that way, but it wouldn't surprise me to find out the US has an asinine system in place to help the lawyer make a fortune. Already on this thread I'm reading about field sobriety tests and blood tests. It's like they're still living in 1930.

Re:Not in Europe

[Dare nMc]

This is about the "Alcotest 9510" it is not a roadside test unit, this is the final verdict machine that is at question.

Re:Not in Europe

[markdavis]

>"It's amazing how many people rant about seeing the source code for breathalysers (in case there's some hidden DWB routine or something) while actually believing in field sobriety tests which are purely subjective and also totally fucking rubbish."

Conversely, even an absolutely precise measure of blood alcohol is ALSO rubbish. It says nothing about how much an individual is or is not impaired.... unless you know THAT PERSON'S EXACT baselines. There are lots of very valid factors that can complicate how impaired someone is- weight, age, base reflexes, brain type, gender, tolerance. One person could be over the limit and barely impaired at all, while someone else could be UNDER the limit and totally wasted.

Oh, and there are a zillion ways one could be "impaired" (intoxicated) that have nothing to do with alcohol. Illicit drugs, prescription drugs, lack of sleep, medical conditions, etc.

Those "subjective" tests are actually very useful in quickly determining impairment. In fact, I think it would be great to ditch alcohol tests completely and use some technological device that tests reaction time objectively....

Why on earth is the breathalyzer a final test

[Riceballsan]

For charges so serious, it doesn't make much sense to me. It's a test that in nature seems like it is just made for a quick rough assessment that is fast and easy to do in the field. Great for weeding out who is worth the time to take to the station for a real test.

Re:Why on earth is the breathalyzer a final test

[zwarte piet]

It isn't! At least in Netherlands where I live they do a blood test at the police station if the breathalyzer shows too much alcohol.

Why does this need to be computerized?

[davidwr]

OK, I get it, the user interface etc. should be computerized for convenience.

But the part that "holds up in court" should be as close to the raw data as possible, which can and probably should be analog or at the very least a very simple, relatively-easy-to-audit-for-correctness digital system.

This web site describes a breathalyzer which appears to be analog. It also describes an intoxilyzer, which uses a microprocessor. If the electrical pulse being fed into the microprocessor can be captured for later playback in court, then the defense team's experts can interpret it using their own algorithms if they wish.

Re:Why does this need to be computerized?

[hey!]

The issue isn't with the software per se, but what the examination of the software revealed about the units as a system. If you used op amps instead of microcontrollers most of those issues would still be there.

The sensors used are temperature sensitive. The configuration used by the police disabled ambient temperature checks, which I guess you could call a digital issue. The device lacks a breath temperature sensor, which means that people with warmer than average breath could get false positives.

These devices also should be re-calibrated after a fixed number of uses; instead the state was re-calibrating them on a fixed schedule. While that schedule might work for an *average* device, devices that had been heavily could b e giving spurious readings.

On the flip side the device uses two different types of sensors to measure alcohol, and rejects readings where the sensors give different answers. This might mitigate some of the defects in how the state used them, but nobody can be sure. All we have is the assurance of the state authorities that the devices "have been tested to meet our business needs," without any specifics about what the test entailed.

The danger of these things is that they give you a number and it all seems so scientific and precise. You don't get the hemming and hawing that comes with a human opinion, metadata that helps you decide how certain you should be of that opinion. Layman don't understand the limitations of technology, they assume the tech should "just work". I'd trust a sophomore engineering student to devise policy for using these things over a police chief with decades of law enforcement experience.

All about the $$$

[Zorro]

A Drunk Driving conviction is big business in California.

Of course they would tweak the test to get more and more money.

You can easily spend $15K if you get one.

Re:All about the $$$

[Anonymous Coward]

Same here in Texas. Williamson County makes buck on people whom they arrest for "DUI." Many of those don't take a breath test because they have been told not to, and up until this year (2018) there was no requirement for a blood test. The sad thing for those who are arrested is that it does cost somewhere in the range of 15K to adjudicate. Then there are the required fees, going to court, doing public service, taking alcohol and drug classes. Then, once that is successfully completed, your arrest record is still available, on line, for anyone who wishes to view it. I know people who have lost potential employment and have been harmed in current employment because it is assumed that just because you are arrested, you are guilty.

Re:All about the $$$

[mlw4428]

California has an implied consent law which requires those arrested on suspicion of drunk driving to submit to chemical testing to establish BAC. Breathalyzers are generally used to establish cause for arrest. So while the test being inaccurate may throw out a lot of "potential reasoning" for arresting a person, there could be a multitude of other factors. Factors like smelling alcohol on the breath, improper driving, inability to pass a sobriety test, and certain medical indicators (non-responding eye dilation, etc) that might be used instead.

Re:All about the $$$

[Ryn]

Here's how it happened with my ex few years back in Travis county: she refused breathalyzer test, was taken to station where for whatever reason they did not draw blood.
This happens before you even get to trial, which took about 6 months.
The refusal alone suspends the drivers license.
Then you hire a lawyer to represent you.
Your lawyer applies for a temporary drivers license for go to/from work and you have to keep a log of your travels.
While you wait for your temporary license to get approved you may get an itch to drive somewhere like movies/store/etc (this was pre-Uber)...should you get pulled over, you're now driving without license.
Local cops also then remember what car you're driving and will basically just pull you over every time they see your car on the street, on the off chance you're still without license or not on your way to work/back home.
You also don't want to tell your auto insurance company about your run in with the law (remember, you still haven't had a trial yet) so you have to go get temporary minimum auto insurance from one of those "minimal insurance with no credit check" places. Costs a few hundred upfront. Then you go to trial and if your lawyer didn't manage to convince every juror of your innocence you either go for mistrial and do it all over or prosecution offers you wreckless driving charge which you'll take.
This process was not fun to witness. Innocent until proven guilty my ass.

Re:All about the $$$

[Anonymous Coward]

Isn't this a civil court issue? IIRC, those cases are burden of proof (aka prove your innocence). I do agree it's about making money. Texas has to make up its government shortfalls somehow. Especially since Texas tax dollars are used propping up the rest of the southern economies.

Re:All about the $$$

[Anonymous Coward]

A Drunk Driving conviction is big business in California.

Of course they would tweak the test to get more and more money.

You can easily spend $15K if you get one.

I don't have much sympathy with people who drive while drunk, but what the government is doing is also wrong - and we don't really know how many of these convictions are actually valid.

Basically, the issue here is that the US public is willing to let government in the US routinely break the law - or doesn't understand that government is breaking the law.

The dual rights to ethical government and ethical practice of law, arise under the 9th Amendment (rights retained by the people) and the 10th Amendment (rights reserved to the people). No one with any integrity will deny this. Even the appearance of conflict of interest must be avoided when alternatives exist.

For government to keep the money from fines creates conflict of interest on multiple levels. It doesn't matter whether the money is directly applied to the salaries of government officials, or laundered the into some sort of general fund. Money laundering does not make dirty money clean, as it simply frees up funds to pay the salaries of government officials (and gives the politicians money to spend on things that will get them re-elected, hence creating additional conflict of interest). Hence, the government can not keep ANY money from fines or penalties, including DUI or even traffic violations.

If government doesn't have enough money, their responsibility is to either raise taxes or cut costs. They're not supposed to have the option of breaking the law to get more money into the budget.

Hence, the money from fines and penalties must be handled in an ethical way, completely separate from the main budget, such that no reasonable person would suppose it's going to create conflict of interest. One possibility would be to divide the money up, and return it equally to all citizens who are a) not governments employees or contractors, b) not living the household of any government official or contractor, and c) not closely related to government employees or contractors. Other possibilities exist.

Lots of bogus traffic tickets get issued as a result of the fact that government isn't complying with the Bill of Rights. The police and other government agents really are behaving as mobile tax collectors. In some cases, they've even been caught on video altering the timing of traffic lights to get more tickets. You can often get off, or get the penalty reduced, if you get a lawyer. It's a really sick situation. In many ways, both government in the USA and the US legal profession are each behaving like an organized crime protection racket. It's like we have two criminal gangs, and you have to pay off one or the other.

Incidentally, this sort of thing isn't limited to fines. The same kind of game is played with property taxes in some jurisdictions, such as Chicago. Your property taxes (i.e. the rent you pay the government to be able to occupy your home) will go up every year by a significant amount. However, you can pay a lawyer to dispute the raise, and a large amount will be removed from the increase in the tax. Almost everybody with a property does this. It's an incredible scam on the part of government and the legal profession.

Infringement of fundamental rights "under the colour of law" is already a criminal violation of federal law, so there's already a law on the books to deal with non-compliance with the Bill of Rights. The problem is, nobody in government pays any attention to this. Government routinely violates the law - and the public is too dumb or too distracted to do anything about it.

The US legal profession isn't drawing any attention to this problem, because enforcement of the right to ethical practice of law would have serious financial implications for them - and the last thing they want to do is rock the ethics boat. Economists estimate that half the income of the US legal p

Time to get beyond blood alcohol levels

[PPH]

The neurological deficits of drinking (and using many other drugs) persist long after blood levels have dropped to zero. So either develop tests that measure actual impairment (and bust a lot more people) or just admit that so many people are impaired but sliding under the limits that we may as well just let them drive.

Re:Time to get beyond blood alcohol levels

[ColdWetDog]

If we did that we would solve the transportation crisis in one jiffy. Virtually nobody will be able to drive.

Fortunately, those autonomous cars will be cruising down the pike Real Soon Now and all will be good. That and Amazon 30 minute delivery, virtual reality goggles, Brwando and 'bating.

Re:Time to get beyond blood alcohol levels

[HornWumpus]

WTF?

Bullshit. They've gone way past testing for impairment. They're pushing for 0.05 now...the 'medical definition' of drunk is 0.15. Yes I realize the AMA eventually rolled over, but they made their point first. Your judgement goes to _shit_ at about 0.15, up till there, slower reactions.

If 0.05 is, by definition, unable to drive, then 70 years old is, by definition, unable to drive.

And yes, if you're massively hungover, odds are you are still 0.10. Monday morning is actually a fairly big time for DUI accidents/busts. All the serious alchies are going to work with hangovers + 'leftovers'. The really bad ones will have started the day with a hair of the dog.

Re:Time to get beyond blood alcohol levels

[thegarbz]

The neurological deficits of drinking (and using many other drugs) persist long after blood levels have dropped to zero.

Citation please.

Re:Time to get beyond blood alcohol levels

[Anonymous Coward]

unnecessary and irrelevant. The law in question here isn't that you can't "drive impaired" its that you cant drive with a blood alcohol content of x. The accuracy of the breathalyzer to determine if you are within the legal limits is the issue. What this guy is talking about is an entirely different law (DWI vs DUI).

Re:Time to get beyond blood alcohol levels

[Ryn]

Or we simply admit that most people shouldn't be allowed to drive in the first place. Quite often alcohol isn't even required for them to make an idiotic decision.

Re:Time to get beyond blood alcohol levels

[Anonymous Coward]

Well, our legislators clearly know what constitutes being drunk better than doctors and medical professionals do, just like they know how to make safe and efficient cars better than automotive engineers do, just like they know how to implement information security better than computer scientists do...

I mean, come on now--we all saw the interview with Mark Zuckerberg and that should show how smart and capable of tackling complex, technical issues our elected representatives are, right?

Re:Time to get beyond blood alcohol levels

[PPH]

Virtually nobody will be able to drive.

That suits me. We are a long way past the point at which we should have been culling bad drivers and using them to create a demand for public transit.

Trust But Verify

[crow]

So in most cases they use the breathalyzer along with a field sobriety test to determine if they should arrest a driver, after which they normally draw a blood sample for a more precise test. (In most states, drivers can refuse the tests and receive an automatic license suspension, though that's often not as bad as a conviction, but it doesn't preclude a conviction based on the sobriety test alone.)

So we have lots of cases where there is both breathalyzer test data and blood test data. This gives a huge amount of data that can be correlated. Also, the times of the test should be recorded, so expected declines due to delays between the two tests can be computed. So all we need to do is gather up the data from a few years of use, and then we can see what the reliability of the breathalyzer is in comparison to the blood test.

We know that any test can fail (equipment failure, cross contamination, operator error, etc.), but this will give solid data on the expected error.

Re:Trust But Verify

[Anonymous Coward]

A lawyer once told me you can refuse the field sobriety test (walk the line, touch your nose, etc). Doing the test only gives them probable cause to arrest. Additionally, in my state, actual impairment is at the discretion of the police officer. So you can fail the FST, blow a 0.0, and still get a DUI. A .08 is an automatic DUI, but anything below is still a DUI if the cop says you were impaired.

And, of course, the dirty secret of the whole thing is that drunk drivers who kill people are almost always WAY over the limit.

Re:Trust But Verify

[Anonymous Coward]

So we have lots of cases where there is both breathalyzer test data and blood test data. This gives a huge amount of data that can be correlated. Also, the times of the test should be recorded, so expected declines due to delays between the two tests can be computed. So all we need to do is gather up the data from a few years of use, and then we can see what the reliability of the breathalyzer is in comparison to the blood test.

So, who exactly is "we", kemo sabe?

Re:What?

[Anonymous Coward]

check your six.

Legal gambling ahead, stop drinking already!

[Anonymous Coward]

Having worked at Draeger I am somewhat biased but I will also be able to provide a more in-depth description of the company itself. The company manufactures loads of equipment for diving (tanks, breathing apparatus), fire prevention, fire detection, infra-red cameras, alarm systems and more. Everything is obviously thoroughly documented, tested and accounted for due to risk of life. The R&D floor at the office I worked housed proper chemical and electronics labs containing millions of dollars worth of inventory. I find it hard to believe that there are "serious" issues with these breathalysers, especially considering they are sold not just in the US but dozens of other countries.

The real issue is with police departments not taking proper care of these machines. Not following calibration procedures and using them in out of spec environments (eg. near an air conditioner set to full blast). I know for a fact officers using this equipment can't be bothered to read the "MOUTHPIECES ONLY" sign on the returns barrels as I usually found at least 20 USED needles, condoms, pills and other trash in every barrel.

Regardless, this is just a bunch of convicted drunk drivers that want to argue numbers to get out of jail and refuse to drive sober. Even if the device was off by 6% (as claimed in the article), zero will still be zero.

Lets be real, police officers are not fond of paperwork and they will only test you if they have good reason... When they see you swerve all over the road being at least twice over the legal limit, the test itself is just to prove objectively that you are drunk.

If only these people would invest as much effort making sure people don't drink and drive, drunk drivers wouldn't be the cause of for the vast majority of accidents.

Re:Legal gambling ahead, stop drinking already!

[Anonymous Coward]

Even if the device was off by 6% (as claimed in the article), zero will still be zero.

You worked for the company, and "zero will still be zero"...

... I think I'm starting to understand why the devices don't work.

Have you ever used a food scale?
Do you know what the tare button is for?

Lets be real, police officers are not fond of paperwork and they will only test you if they have good reason...

Let's be real, police officers are people.
And like any large group of people, there are good people and bad people in it.
There are also good people having a bad day, every single day.

I'll not assume the officer's reason for pulling someone over is legit.
That's what the device is supposed to prove; if/when it actually works.

Re:Legal gambling ahead, stop drinking already!

[Actually, I do RTFA]

Lets be real, police officers are not fond of paperwork and they will only test you if they have good reason

Catching a sufficient number of violators is one way for them to ensure promotions. Which kinda makes sense... after all if Officer X caught 100 bad guys and Officer Y caught 2, it does make Officer X look better at his job (all other things being equal.)

There are also rumors of quotas.

Re:Legal gambling ahead, stop drinking already!

[Anonymous Coward]

Regardless, this is just a bunch of convicted drunk drivers that want to argue numbers to get out of jail and refuse to drive sober.

You have no way of knowing this. You are jumping to conclusions. That's a careless and sloppy. We have no choice but to presume that this represents your default mode of thinking, and that your thinking about ALL matters is careless and sloppy.

Everything is obviously thoroughly documented, tested and accounted for due to risk of life.

There could be all kinds of problems with your assumptions here, since we know you are a careless and sloppy thinker. The only way to know whether this claim is true is to actually measure the claim. We call this science.

No such measurement has been made. It's not even clear how we do that. What does it mean to measure thoroughness with respect to documentation, test, and things being "accounted for" (whatever that means)? Nobody has measures for thoroughness that are generally accepted by the scientific community and well established. Perhaps your Star Trek friends gave you a tricorder with a 'thoroughness' setting?

The word "Everything" means there are no exceptions - how likely is that? There could be all kinds of things not accounted for because nobody thought to account for them - or because they were mis-understood or mis-measured. There have been many failures of systems where "risk of life" is involved throughout human history - and examination of that history shows that these sorts of oversights are commonplace.

In short, your claim is either propaganda and/or more evidence of sloppy and careless thinking.

Lets be real, police officers are not fond of paperwork and they will only test you if they have good reason...

That's the sort of conclusion a careless and sloppy thinker reaches - and we've already established you are that type of person.

Fines bring money into the budget of government, which frees up funds to pay the salaries of police officers even if not being used to pay those salaries directly. That money is also available to politicians to spend in ways that help them get re-elected - and those politicians have a lot of influence over postings and promotions for the police. This creates something that is called "ethical conflict of interest", and it strongly influences human behaviour.

In short, police officers are people. Sometimes they are good, responsible people, who do the right thing even when the system is broken, but often they are not. They can be careless, they can be hasty, they can be ignorant, they can be sloppy or careless, they can be under a lot of stress. They make a lot of bad decisions. They discriminate on the basis of race, or sex, or other factors. They jump to conclusions. They want promotions and are sometimes not all that discriminating about what they do to get those promotions.

Test equipment needs to be reliable in the field, in the real world, being used by real people who are often careless, ignorant, sloppy, and may have an agenda - and there is considerable reason to doubt that this equipment meets that standard.

I need volunteers

[Impy the Impiuos Imp]

In building a breathalizer to detect wayyyyy too much drinking, one would think the first thing they did was extensively test the happy path.

Re:I need volunteers

[Ken_g6]

Wait, I'm confused. Is the happy path the one that involves "happy hour"? Or is the happy path the one that involves not getting a DUI?

Re:I need volunteers

[thegarbz]

One of my friends worked for a company which calibrated the units for the local police. He brought some home and we pulled it out at a party. Naturally this turned into a competition with a few people blowing 0.15 and up.

Well these things have an audit trail in them which raised some eyebrows when the police printed it off when it was returned.

Re:I need volunteers

[laurencetux]

then there was the frat house that THE BUILDING blew "legally drunk" (there was so much in the air that the units registered "drunk" from the ac blowing)

double dumbass on YOU

[Anonymous Coward]

Why did you call him an asshole? He didn't say anything about driving drunk, and it's obviously assumed that everyone is talking about a situation where the driver is sober. But what do you do when a cop wants to test the sobriety? Don't we want to have DWI/DUI laws? If you have these laws, you need some way to investigate suspects. But impaling innocent people (yes, I'm using totally loaded language here, on purpose) is something most of us don't want.

So a whole game develops in the middle ground of uncertainty. Go too far one way, and you don't really have effective laws against drunk driving. Go too far the other way, and you're poking holes in innocent people to make them bleed. Breathalysers were a great compromise .. if only they hadn't tried to keep the inner workings a secret from the very society that judges the accused, thereby making them bullshit "evidence." FAIL.

Open up the breathalysers to auditing and maintenance and you'll have a useful technology. Just like we eventually determine with everything else that's important (e.g. the software in your desktop computer). Anything you can't audit, is bullshit.

Re:double dumbass on YOU

[Falconnan]

Why did you call him an asshole? He didn't say anything about driving drunk, and it's obviously assumed that everyone is talking about a situation where the driver is sober. But what do you do when a cop wants to test the sobriety? Don't we want to have DWI/DUI laws? If you have these laws, you need some way to investigate suspects. But impaling innocent people (yes, I'm using totally loaded language here, on purpose) is something most of us don't want.

So a whole game develops in the middle ground of uncertainty. Go too far one way, and you don't really have effective laws against drunk driving. Go too far the other way, and you're poking holes in innocent people to make them bleed. Breathalysers were a great compromise .. if only they hadn't tried to keep the inner workings a secret from the very society that judges the accused, thereby making them bullshit "evidence." FAIL.

Open up the breathalysers to auditing and maintenance and you'll have a useful technology. Just like we eventually determine with everything else that's important (e.g. the software in your desktop computer). Anything you can't audit, is bullshit.

This! So much this!

Re:double dumbass on YOU

[Anonymous Coward]

I think that was a great reply you made, I just want to mention that breathalyzers work by detecting the 'ethanol' that your blood exudes into your lungs. Lots of people think eating something will help, it won't. If you have alcohol in your system there is no way to keep your body from 'out-gassing' it into your lungs.

Re:double dumbass on YOU

[Immerman]

>He didn't say anything about driving drunk

Sure he did:
> when you submit and get convicted
When. Not If. And if the blood test convicts you, then you were driving drunk.

Re:double dumbass on YOU

[TechyImmigrant]

I think that was a great reply you made, I just want to mention that breathalyzers work by detecting the 'ethanol' that your blood exudes into your lungs. Lots of people think eating something will help, it won't. If you have alcohol in your system there is no way to keep your body from 'out-gassing' it into your lungs.

It detects ketones too. So if you are in ketosis, because you skipped you veggies yesterday, you can be stone cold sober and the machine will light up positive.

Re: double dumbass on YOU

[Anonymous Coward]

It also detects mouthwash, for up to an hour after you use it.

Re:double dumbass on YOU

[Anonymous Coward]

Interesting. From: https://www.perfectketo.com/what-are-ketones/

Ketones, also known as “ketone bodies,” are byproducts of the body breaking down fat for energy that occurs when carbohydrate intake is low.

Here’s how it works:

When there isn’t a sufficient level of available glucose — which is what the body uses for its main source of fuel — and glycogen levels are depleted, blood sugar and insulin are lowered and the body looks for an alternative source of fuel: in this case, fat.

This process can happen when a person fasting, after prolonged exercise, during starvation, or when eating a low-carb, ketogenic diet.

And when the body begins breaking down fats for energy like this, a process known as beta-oxidation, ketones are formed for use as fuel for the body and brain. This is known as ketosis.

People following a ketogenic diet specifically reduce their carbohydrate intake for this reason: to create ketones for energy.

Many people use the benefits of ketosis — less reliance on carbs and more burning of fat — to possibly help lower blood pressure, reduce cravings, improve cholesterol, increase weight loss, improve energy, and more.

Re:double dumbass on YOU

[Anonymous Coward]

>He didn't say anything about driving drunk

Sure he did:
> when you submit and get convicted
When. Not If. And if the blood test convicts you, then you were driving drunk.

Except for the fact that this very article conclusively proves that the tests are inaccurate. He wasn't talking about blood tests, but breathalyzers.

Honestly, the real answer to this is sobriety field tests or driving tests. If you can drive and react to unpredictable circumstances you would encounter with driving, you are good to drive, no matter what substances you may or may not have imbued.

If you are too old, or slow, or fat, to pass the test, you should have your license suspended and be fined just the same as if you were drunk.

If you were drunk and passed, then you were obviously OK to drive.

Re:double dumbass on YOU

[losfromla]

Skipping your veggies doesn't put you in ketosis. Not eating carbs and sugars does. It takes longer than a day to enter ketosis, though as the body has to become fat adapted.

Re:double dumbass on YOU

[Immerman]

Reread the thread - this entire thread, right to the topmost reply to he article, is about blood. Even Reanjr's comment, to which AC posted the "when you get convicted" statement, was specifically about needles.

I full agree with you about actual competency tests being far preferable. Unfortunately they'd also be far more expensive - at a minimum you'd need a high quality driving simulator available in-cruiser, or get you back to the station for immediate testing there, before you have a chance to sober up.

And high quality is the watch word - it needs to be a realistic enough scenario so that existing real-life skills translate directly - a screen, or even current VR's peripheral vision blinders, are going to really throw off a lot of people's situational awareness, especially non-gamers.

We could perhaps design a "game" that (supposedly) tests attention, reaction times, etc., but it's extremely unlikely it would be an accurate assessment, and then we'd be punishing perfectly competent drivers for not being good at learning new games. Just a different version of the existing problem.

As it is though you're unlikely to be pulled over in the first place unless you're driving erratically (DWI checkpoints and dark skin notwithstanding). And if you have a high BAC, AND are driving erratically near a police officer, then you were almost certainly guilty of at least not paying enough attention to driving given your level of impairment.

Re:double dumbass on YOU

[Bryansix]

Veggies are carbs, guy. If you don't know that, you aren't going to make it. https://www.ditchthecarbs.com/...

Re:double dumbass on YOU

[Bryansix]

What office are you running for so I can vote for you?

Re:double dumbass on YOU

[TechyImmigrant]

Skipping your veggies doesn't put you in ketosis. Not eating carbs and sugars does. It takes longer than a day to enter ketosis, though as the body has to become fat adapted.

I was speaking glibly. I'm a full time plant matter avoider and know well how to be in and out of ketosis.

The point is still valid, these devices will peg someone on a ketogenic diet as being drunk.

Re:double dumbass on YOU

[losfromla]

Some are, some aren't. I was keto for the better part of 5 years so I'm well aware of such things. However, the primary drivers for a ketogenic diet are: high-fat, low-carbs, and moderate to low protein. Nowhere on that list you'll notice is "skip vegetables". Non and low carb vegetables: all salad-type greens, broccoli, cabbage, cauliflower, etc... Here's a couple of lists for you friend:
https://www.dietdoctor.com/low...
https://www.healthline.com/nut...

Re:double dumbass on YOU

[losfromla]

On a forum full of detail-oriented type of people you decided to be sloppy? Good move! ;-)

As to your point on the sensors detecting ketones, I didn't disagree as you've no doubt noticed. I didn't disagree because I really know nothing about them so I took it as given that you were correct on that point. Which was actually sloppy of me considering that you were wrong on the topic that I did know about, I blame my laziness..

Re:double dumbass on YOU

[sjames]

Based on what we know about drug testing in Massachusetts, not necessarily.

Re:double dumbass on YOU

[sjames]

Or if you are overdue for your insulin.

Re:double dumbass on YOU

[TechyImmigrant]

Yep. That's why I don't eat plants.

Re:double dumbass on YOU

[TechyImmigrant]

Ahh, but carnivory is still an option.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Tinder has the solution.

[pr0fessor]

All the chubby chasers would fail....

the field sobriety tests are what scare me

[Anonymous Coward]

first, I'm just a generally clumsy person

second, I have a bad knee, actually one really bad knee and another knee that isn't great because of decades of compensating for the other one

those two things together mean that I could be as sober as the proverbial deacon and fail all that mess about walking a straight line toe to heel, standing on one leg, whatever

Has nobody heard of black box testing

[Snotnose]

Jeez, this diverges into rantings about various DUI laws when IMHO the real issue is "Can we prove it's accurate without looking at the source?". IMHO, yeah. You specify the list of requirements, neither knowing nor caring how the magic box does it's magic, and if it passes the tests it's good to go.

If you have half a brain you automate these tests and retest the things every once in a while, like maybe while your taking the blood/urine sample and booking your suspect into jail.

And yes, I've written a few fully automated and some semi-automated test suites.

What is the estimated false postive rate?

[larryjoe]

From the article, the findings from the defense experts were scenarios that could result in false positives. But, what's the false positive rate as a function of the reading? That's what's important. Readings are just samples that estimate the true characteristic. The experts found that readings near the legal threshold could be inaccurate. However, that should have been obvious even without examining the system. The real question is what the confidence levels as the readings get near the legal threshold. That crucial information may not be knowable by only examining the software. However, inaccuracy from a measurement device doesn't mean that the device is useless. All measurement devices are inaccurate. The key to practical usage is understanding the expected confidence in the measurements.

If you are taking the test

[Anonymous Coward]

You already failed.

If you are pulled over for something stupid, and you have the slightest wiff of alcohol on you, you are guilty of DUI in most jurisdictions. The breathalyzer and the limit is just to take subjectivity out of it.

windfall for the lawyers

[Anonymous Coward]

The defend you a second time and get paid, win or lose. YAY! I can pay off my student loans.

Nothing to see here.

[Jason1729]

The Alcotest is a roadside screening device. People who fail the road side test are then taken to a station (or mobile truck during RIDE type programs) for a more precise test.

The roadside screening only has to give the police officer reasonable and probable grounds to arrest the person and continue with the investigation and subsequent test. Even if this result proved 100% that the Alcotest produces a lot of false positives, it casts zero doubt on any convictions or even matters currently going through the courts. The cops would have had RPG on a good-faith basis and every right to have proceeded.

Going forward, it may be possible to argue that with the alcotest proven unreliable it can no longer be used to establish RPG, but even that won't be automatic because the roadside screening device isn't really required if the cop can say their were sufficient signs of impairment to arrest on impaired driving rather than over 80. The over 80 can then be laid at the station if the person blows over.

TL;DR nothing to see here.

self driving cars fixes this

[MooseTick]

Yet another thing self driving cars will fix. Once those are standard, there will be no more DUIs. There will also be no more tickets for speeding, running red lights, failure to maintain control, reckless driving, or any other moving violations.

Sadly, I think cops will hate this. They want to be able to have a reason to pull someone over, especially if they are black (and this is coming from a white male who reeks white privilege). They will also fear this will eliminate a need for a major part of their job. I don't know the number, but suspect a sizable percentage of police activity involves traffic enforcement. If cars are driving themselves, their need will greatly diminish. At some point, municipalities will decide they don't need to pay someone to enforce laws that aren't being broken and there is no longer a threat to society by drunk and reckless drivers. I'm not sure what the final outcome will be, but it doesn't look good for the men in blue.

Re:self driving cars fixes this

[Anonymous Coward]

Wow. Troll much? Why do you have to make it about 'white privilege?'

Anyone who thinks AI-driven autonomous cars will 'fix' problems like running lights, etc. is flatly ignorant of the state of computing and automation. We've been promised flying cars for half a century. Nada. We've been promised humanoid robots for equally as long. Nada. A self-driving car is equally difficult and unlikely.

Re:Tinder has the solution.

[Anonymous Coward]

but should they be driving in the first place.
ban them.

Objective evidence not opinions

[Anonymous Coward]

The opinions of lawyers and paid code readers are hardly probative. If there is an objective accuracy or reliability issue testing with many devices under various conditions is needed. Alternatively a formal performance standard and test procedure is reasonable. The FDA or even NIST are well qualified to do this but of course very few are manufacturer or users are willing to cover the costs.

Re:Tinder has the solution.

[Anonymous Coward]

All the chubby chasers would fail....

I am chubby you insensitive clod!