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SFPD Breathalyzer Mistake Puts Hundreds of DUI Convictions In Doubt 498

Posted by Soulskill
from the calibration-is-key dept.
Mr. Shotgun writes "According to CBS, 'Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday. For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment. Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.' Apparently this has happened before."
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SFPD Breathalyzer Mistake Puts Hundreds of DUI Convictions In Doubt

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  • Oblig: FTP (Score:4, Informative)

    by stevegee58 (1179505) on Friday March 09, 2012 @01:34PM (#39302423) Journal
    Even though you'll most likely have your driver's license suspended if you refuse a breathalyzer, it's best to refuse it anyway if you're drunk.
    Once you refuse the breathalyzer it gets complicated for the police and the clock starts ticking to get that blood test done in a timely fashion.
  • by Registered Coward v2 (447531) on Friday March 09, 2012 @01:43PM (#39302527)

    Unless, of course, you're guilty and looking for plausible deniability......

    But then, if you aren't guilty, take the breath test and if you fail, ask for the blood test.......otherwise, you have to take a ride to the station for the blood test, and all of that other inconvenience.

    If you fail you'll get a ride to the station anyway. The advisability of refusing a test aside; it's still not that hard to get convicted of DUI based on other evidence. I served on a DUI jury, and all a breath test would have done is shorten the time it took to reach a verdict from 2 days to probably 2 hours. We took our job seriously and debated each piece of evidence, so not having a breath gets probably helps a case but it is not a slam dunk acquittal by a long shot.

  • by wwphx (225607) on Friday March 09, 2012 @01:52PM (#39302657) Homepage
    Unbelievable. I worked for Phoenix Police for nine years doing computer work. We had implemented an optical document management system when DUI attorneys started subpoenaing Intoxilyzer maintenance records as SOP when it came to cases, so we started scanning all calibration and maintenance records as part of our SOP. It also made it ridiculously easy to fulfill the subpoena. Our Intoxilyzers were calibrated by the crime lab, so it was actual chemists with a vested interest in accuracy, so it was done right. And this was back in the 90's!

    Just unbelievable that SFPD could be so stupid. There's no excuse for this, whoever is in charge of that calibration really needs to get their heads handed to them. And so does the prosecutor's office for not checking this.
  • by cayenne8 (626475) on Friday March 09, 2012 @02:02PM (#39302793) Homepage Journal
    Yep...I've asked lawyer friends...

    If I get pulled over (and this does vary by state)...and I know I'm toast, on his advice, I won't say a thing, won't answer a question, I will NOT take any roadside tests (that's just letting them gather evidence against you on camera) and refuse breath or blood tests.

    I'll politely hold my hands out for them to put the cuffs on me, and quietly go with them...and call my atty when I get to the police station.

    The main thing to do...is NOT give them any evidence....or as little as possible.

    In many states, at worst on first offense, refusing any tests might get you license yanked for 6mos up to a year, but with good atty, you can get temp license to drive to/from work and for food, etc.

    A PITA, of course, but much better than getting a DWI on your record...which can then keep you out of jobs, kills your insurance rates...and cost $$$$.

    Ever since they lowered the BAC to the ridiculously low 0.08....a grown man, having 2 drinks with a meal, can be dangerously close to the so called legal limit.

    So, it pays to know what to do....the govt these days seem to be into any kind of traffic stop mostly for revenue these days...safety is usually second place.

  • by John Jorsett (171560) on Friday March 09, 2012 @02:08PM (#39302855)

    What idiots. Any time you use a piece of scientific equipment regularly, you have to be sure you're calibrating it. Even better if you're checking your calibrations multiple different ways.

    We had a case locally where a guy ticketed for speeding demanded the calibration and maintenance records for the speed gun used. The cops couldn't produce them and the case was dismissed. If I'm ever hauled in for something that an instrument claims I did, the first thing I'll do is subpoena everything related to it that exists or should exist. People get lazy and complacent and there's a good chance they didn't follow procedure.

  • Re:Good (Score:4, Informative)

    by Opportunist (166417) on Friday March 09, 2012 @02:08PM (#39302865)

    Dude, you've seen the crap that came out of congress lately and you STILL don't believe that you can be drunk for 14 days straight (and much, much longer, for that matter)?

  • by pedrop357 (681672) * on Friday March 09, 2012 @02:15PM (#39302987)

    Nearly all of the states have signed onto 2 of the 3 compacts dealing with out-of-state drivers licenses. Each state agrees to honor decisions like license suspensions from another:

    http://en.wikipedia.org/wiki/Driver_License_Compact [wikipedia.org]
    http://en.wikipedia.org/wiki/Non-Resident_Violator_Compact [wikipedia.org]
    http://en.wikipedia.org/wiki/Driver_License_Agreement [wikipedia.org]

  • by StikyPad (445176) on Friday March 09, 2012 @02:18PM (#39303033) Homepage

    I did calibration in the military. We calibrated the breathalyzers at my command, among other things, and it wasn't uncommon to find one bad out of every 3-4 using the manufacturer's recommended interval. Using the recommended interval *should* generally mean that you won't find any devices out of tolerance, and any units that are close to being out of tolerance are either adjusted or discarded.

    Certifying a unit as being calibrated without actually performing the verification is colloquially called a "lick & stick." In the military, it's a potentially NJP (non-judicial punishment) offense on its own, which could be considered something like a misdemeanor. And if it there any actual consequences as a result, like damage or destruction of equipment or injury or death of personnel, you could easily be facing a court martial, which is more like felony charges.

    Apparently they do things a little differently at the SFPD.

  • Re:Not a mistake. (Score:4, Informative)

    by JazzHarper (745403) on Friday March 09, 2012 @02:31PM (#39303249) Journal

    Falsification of a government record by an officer is a crime under California law pursuant to Government Code 6200-6203 and may also constitute unlawful forgery under Penal Code 470. If one officer showed another how to do it, that would constitute conspiracy to commit one or both of the above offenses, which would be a separate charge.

    http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=06001-07000&file=6200-6203 [ca.gov]

  • Re:Good (Score:3, Informative)

    by RussellSHarris (1385323) on Friday March 09, 2012 @02:42PM (#39303401)

    Call me naive and over trusting, but I generally figure if you are driving poorly enough to warrant a cop pulling you over in the first place.. you probably should be off the road ... Are there cases where police have abused this power? Pulled someone over who was not drunk and driving just fine, did the breathalizer...

    Have you completely forgotten about DUI checkpoints? Everyone gets stopped, and they either take the breathalyzer or they get arrested for failing to give a sample. Yes, they're a blatant violation of our rights, but courts all over have ruled in favor of the practice.

    The reason for this is, of course, your assumption is quite incorrect: the legal limit is SO DAMN LOW that you won't be "driving poorly enough to warrant a cop pulling you over". That's why they have to pull everyone over and use the breathalyzer.

  • by tftp (111690) on Friday March 09, 2012 @02:46PM (#39303477) Homepage

    I would hope that would be no more possible than flashlight emitting a lethal dose of visible light.

    The GP is right. Take a flashlight, focus the light into a point (into an image of the LED crystal, to be precise) and point into your eye. You'd lose vision in that eye pretty quick.

    X-ray scanners are scanning you with a medium power (? no data) beam. Each spot of your skin is exposed to that beam for a fraction of a second; an average exposure is supposed to be low. Imagine that I take a hot soldering iron and slide its tip across your chest. Each patch of the skin under the iron's tip heats up to 450F, but since there are many of those patches the average temperature is only, say, 45F - which is totally harmless. Would you like to lay down here, please, while I heat the iron up?

    A catastrophic fault will stop the beam of the scanner. The entire output of the X-ray tube will be directed at a single spot of your body, wherever it happened to be at the time of failure. There could be many causes of that, from mechanical (insufficient grease; plastic gear stripped; motor burned out; the MOSFET controlling the motor is blown; motor's power supply failed) to programming (the software crashed in mid-scan.) That would be analogous to me starting to slide that hot soldering iron across your chest, but then just stopping the movement half-way, leaving the iron's tip on your skin, and going for a dinner. It'll burn a hole all the way through you by the time I'm back...

    Nobody knows how reliable the X-ray scanner is. For all I know, it may be controlled by a Windows 95 box. You'd need to be awfully reckless to step inside one of those scanners. Technically illiterate people may see scanners as an opaque magic box and go through them without a second thought. But an engineer knows how dangerous those things are.

  • by Bassman59 (519820) <andy@latke . n et> on Friday March 09, 2012 @03:11PM (#39303877) Homepage

    In the UK, refusing/failing to provide a specimen of blood or breath carries the same punishment as providing a positive sample. This gets around people like you trying to avoid responsibility for their actions.

    In the US, our Constitution explicitly says that you do not have to incriminate yourself, and providing a breathalyzer or blood sample does so.

    (Some states have gotten around this to some degree by giving you an "administrative" sanction by taking your license if you don't, which is still way better than DWI -- but they can't give you criminal charges for it.)

    It's called "implied consent," which means that, as a condition of having a driver's license, you automatically consent to the cop's request for a breathalyzer or other test. A lawyer friend explained it to me like this. Driving is a privilege, not a right (there's no Constitutional right to drive a car). As such, you are bound to follow all of the laws which govern that privilege. One of the laws is implied consent. You are, of course, allowed to refuse to take the breathalyzer test (that is your right), but the law states that refusal to do so results in the severe penalties they enumerate.

  • by CanHasDIY (1672858) on Friday March 09, 2012 @03:21PM (#39303995) Homepage Journal
    I believe falsification of evidence [thefreedictionary.com] is the charge you're looking for.

    Forgery seems an appropriate charge as well.
  • by Eivind Eklund (5161) on Friday March 09, 2012 @04:15PM (#39304837) Journal

    Wikipedia would say "Citation needed." on that.

    The first result of a search for "increase in risk of accidents with blood alcohol content" - http://www.saaq.gouv.qc.ca/t2002/actes/pdf/(06a).pdf [gouv.qc.ca] - indicate a best estimate of 169% increase in risk at .08% BAC. That's a 2.69x higher risk. They're referring other research showing it at 1.88x.

    My personal experience with alcohol impairment is that my juggling gets impaired at about half a pint of beer; it doesn't affect anything that I can do well, but it affect all tricks at the edge of my ability. I'm an adult male of over 200 pounds (90+kg). I can't feel that amount at all, but it clearly affect my ability.

    Is the 2.69x risk difference something you count as "not sigificantly impaired" (and we just disagree on the definition of significant), or is this a question of difference in research (is there other research I should be aware of) or were you not aware of the actual research levels and may be changing your mind?

    Eivind.

  • by linuxwrangler (582055) on Friday March 09, 2012 @05:05PM (#39305557)

    Instead of fuzzy and non-attributed "laws", how about the specifics?

    Gascon's comment that there was "no malicious intent" is simply ludicrous coming from the mouth of the official in charge of prosecuting criminal actions. It's not like someone said, "whoops, got the radar from the un-calibrated shelf by mistake - better make the appropriate report and nullify the incorrectly issued citations." This is a case people tasked with an important duty that rests at the core of investigating and prosecuting drunk driving instead wilfully and intentionally falsified reports for over half a decade. If Gascon were a competent prosecutor he would be familiar with California Penal Code section 118.1. Since he apparently is not, I quote:

    "118.1. Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years. This section shall not apply to the contents of any statement which the peace officer attributes in the report to any other person."

    Any questions other than how many counts they are guilty of or how the "miracle never-emptying bottle of calibration gas" went unnoticed by supervisors?

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