Unreliable DWI Breath Testing Can Put You in Jail

Posted by Josh Valentine | Nov 05, 2019

An article in the New York Times is telling readers what North Carolina criminal defense lawyers have known for years about breath testing for drunk driving: “These Machines Can Put You in Jail. Don't Trust Them.” Unfortunately, many drivers rely on these faulty tests and the claims of the prosecutor to plead guilty to driving while impaired (DWI), even if the driver was not actually impaired at the time. 

Investigation into Breath Testing Devices

The Times investigation has looked at a number of states where judges had to throw out hundreds or thousands of DWI cases because the testing results were so unreliable. This included software errors, disabling accuracy safeguards, improper maintenance, and faked calibration records. 

What Makes Breath Testing Devices Unreliable? 

There are a number of problems with breath testing devices that make them unreliable. This can include operator error by the people conducting the tests, problems with the machines, and false positives that can give a misleading result. 

There are policies and procedures in place that are intended to increase the accuracy of chemical test results for DWI arrests. This includes providing instruction on how individuals are to submit a sample, observing the individual for a specified amount of time, and handling samples. When these rules aren't followed, this can decrease the reliability of the tests.

Unfortunately for drivers, they are generally unaware of the proper procedures and may not know if the rules were followed. It can take an investigation, a review of video evidence, or questioning the police to figure out where the rules were broken. 

False positives can increase (or decrease) the apparent amount of alcohol in a breath test sample, that would make a driver appear to have a higher (or lower) blood alcohol concentration (BAC). This can be caused by: 

  • Certain foods, mints, or gums, 
  • Cough medicine,
  • Mouthwash,
  • Medical conditions, or
  • Gastrointestinal issues. 

Even the police may not know when the machines are putting out incorrect information. The police and prosecutors often rely on breath testing machines without question. However, as the news investigation points out: 

“The machines are sensitive scientific instruments, and in many cases they haven't been properly calibrated, yielding results that were at times 40 percent too high.” Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.

Will the Police Tell You About Problems With the Test?

The police and prosecutors are out there to get convictions. The police department and district attorneys are not going to voluntarily give you information that can weaken their case, even if they know about it. Instead, the prosecutor may use these unreliable tests to get you to try and plead guilty. It takes an investigation into your DWI arrest and chemical testing procedures to identify problems with the test that your lawyer can use to challenge the DWI charges.  

Before pleading guilty to any criminal charges, make sure you understand your rights. There may have been problems with your traffic stop, arrest, search, interrogation, or chemical testing that your North Carolina DWI lawyer will be able to review and identify. If your rights were violated, you should not have to pay the price with a criminal record. Talk to your DWI defense attorney as soon as possible after an arrest to make sure your rights are protected.  

At Caulder & Valentine Law Firm, PLLC, we have helped drivers and their families deal with criminal driving charges to stay out of jail and keep their driver's license. Contact us today in Shelby for a consultation.

About the Author

Josh Valentine

You could say Josh has a God-given ability for sustaining long-term relationships. He and his wife first met in elementary school and went to Gardner Webb University (GWU) together, where they tied for number 1 in their class. Then, they both started law school on the same day of their graduation and got married during their first semester. He has also known his law partner Blake Caulder since Kindergarten. Theirs is the perfect partnership. “He’s the brake; I am the accelerator,” Josh says. Both Josh and his wife attended an innovative program at Charlotte Law School that allowed them to complete law school in two years instead of the typical three. His wife graduated and passed the North Carolina bar at age 20, becoming one of the youngest attorneys in the state. He readily admits she’s smarter than him. Of course, Josh went on to pass the North Carolina State Bar himself and later the South Carolina State Bar. While in school, he was Associate Editor of the Law Review and received accolades like Phi Delta Phi International Legal Honor Society membership, Order of the Crown, Pro Bono Honors, CALI Awards (highest grade). In his career as a lawyer, he has been admitted to the United States Federal Court for the Western District of North Carolina, is a member of the American Association of Premier DUI Attorneys, and completed training for DWI Detection & Standardized Field Sobriety Testing. Josh has also been named to the Top 40 Under 40 for Criminal Defense by The National Trial Lawyers, the Business North Carolina 2019 Legal Elite for Criminal Defense, and the 10 Best Attorneys for Client Satisfaction by the American Institute of Criminal Law Attorneys three years in a row (2016, 2017, and 2018). Community involvement has been important to Josh all his life. In high school, he participated in building a Holocaust museum that has become internationally regarded. He and his wife are actively engaged in animal rescue, which currently means seven cats and two kittens. He served in prison ministry and assisted with fundraiser banquets there, and he provides pro bono and reduced fee legal services to those in need. As if all of that weren’t enough, Josh also mentors high risk youth and helps with his church’s youth group. He participates in other community volunteer projects involving construction, remodeling, drywall, painting, and landscaping. He’s an active student of the Bible and has traveled to Israel, Brazil, and Europe for mission work. No one can say Josh isn’t a well-rounded individual. In his spare time, he likes to play softball, basketball, and tennis, and he can play the piano and trombone. Sometimes on weekends, believe it or not, he enjoys pouring and finishing concrete with friends who own a concrete and grading business. In his law practice, Josh has made it a point to develop positive relationships with officers, clerks, and district attorneys, which has proven invaluable in delivering positive results for his clients. It’s important to him to both listen to his clients and fight for them. Law enforcement officers have important responsibilities to keep our communities safe and uphold the law, but one of the responsibilities of attorneys is to make sure officers do their job correctly. Josh considers it his job to hold them accountable for their actions. Josh is a person of deep faith. He knows that the established order of our universe and strength of America’s Judeo-Christian influenced court system is built on God’s word. His passion to serve each client with innovation, excellence and integrity is a byproduct of his faith. When asked why he became a lawyer, Josh says, “All through my life, I have personally witnessed family members and very close friends endure divorce, child custody battles, bankruptcy, civil lawsuits, and even fraudulent criminal accusations. I both saw and experienced the stress such events can place on an individual, and I realized that everyone, at some point in their life, needs hope, comfort, and encouragement. In each one of those situations, the person who was best situated to provide that vital support was their lawyer. So that’s why I became an attorney. I understand what you are going through, and I’m here to help you. Our office is focused on meeting your needs and guiding you through what may be the most difficult time of your life.” Education: Charlotte School of Law J.D., Magna Cum Laude Class Rank – 21 of 328 Associate Editor of Charlotte School of Law Law Review Certification and Concentration in Employment Law Phi Delta Phi International Legal Honor Society Order of the Crown Pro Bono Honors CALI Awards (Highest Grade)—Lawyering Process I and Contracts I Full Scholarship Gardner-Webb University B.S. in Accounting, Summa Cum Laude Distinguished Senior Student Award – Highest GPA Alpha Sigma Lambda National Honorary Society Bar Admissions: North Carolina State Bar