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Report exposes breath test irregularities

Police departments in New Mexico and around the country usually charge motorists with driving under the influence after they fail a breath test. The portable breath-testing devices police officers use at the roadside and the more sophisticated equipment found in police stations detect alcohol by passing breath samples through a chemical solution, but questions have persisted for years about their reliability and accuracy. These questions prompted the New York Times to investigate the way breath tests are conducted around the country, and the newspaper found evidence of neglected maintenance and lax oversight in virtually every law enforcement agency they investigated.

During the course of the investigation, reporters interviewed hundreds of police officers, attorneys and scientists and pored over thousands of documents. They discovered that breath-testing equipment is almost never maintained properly and routinely filled with unauthorized chemical solutions. Experts say that this kind of negligence can lead to blood alcohol concentration readings that are as much as 40% higher than they should be.

The resulting story, which the newspaper published on Nov. 3, included accounts of rats nesting in breath-testing machines and police officers tampering with equipment. Questions about the reliability of breath test results have prompted judges to dismiss tens of thousands of DUI cases in recent years. In Massachusetts, 36,000 breath tests were excluded in what has been called the nation's largest ever purge of forensic evidence.

Experienced criminal defense attorneys may study police reports and supporting documentation with particular care when drunk driving charges against their clients are based on breath test results. When law enforcement is not able to prove that the equipment used was maintained properly and recalibrated regularly, attorneys could seek to have DUI charges reduced or dismissed. Attorneys may also question the validity of breath tests when police officers failed to follow strict testing protocols or their clients suffer from a medical condition that could skew toxicology test results.

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