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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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  • ...this doesn't surprise me in the least. You have a few that respect and understand technology, and all it can do for the dept, but most resent it and try to deal with it and little as possible.

    This won't even change anything, really.

    • by na1led (1030470)
      I hope they get their ASSES sued! If it happen to me, and I had to pay fines, spend time in jail, lose my license, my job, reputation, etc. etc., I'd get the best lawyer and SUE them!
    • 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 cpu6502 (1960974) on Friday March 09, 2012 @01:58PM (#39302751)

      Ya know what else doesn't get calibrated?

        The scanners run by the SA at airports. At any point of time there could be a mechanical failure and the machines start bombarding passengers with lethal (or cancer-causing) doses of X-rays and nobody would ever know, because the machines are not regularly tested (as is required in hospitals and doctors' offices). I don't think I will ever voluntarily step through one of those things.

      There's a reason the European Union banned their use. I wish OUR union would wake-up and ban them as well (but of course the CEO of the scanner company has bought the politicians that make those decisions).

  • by hawguy (1600213) on Friday March 09, 2012 @01:33PM (#39302393)

    Will officers face sanctions for falsifying records?

    The DA said:

    Gascon said there did not appear to be any malicious intent behind the police officers’ actions. He said the coordinators were apparently just too lazy to perform the test required every 10 days.

    Can I use that excuse when I get pulled over for rolling through a stop sign? "But I was just too lazy to stop, officer! Surely you can understand that!"

    • by burningcpu (1234256) on Friday March 09, 2012 @01:43PM (#39302551)
      They didn't just not do the test. They filled out the paperwork to made it appear that the instrument had been calibrated. That is fraud.
      • by Jason Levine (196982) on Friday March 09, 2012 @01:50PM (#39302627)

        I agree. A mistake would have been "I thought you pushed the button until it beeped once. I didn't realize it needed to beep twice to be properly calibrated." Fraud is "I don't feel like putting effort into this. I'll just mark down that I did it. Who really cares?"

      • by TheRaven64 (641858) on Friday March 09, 2012 @01:58PM (#39302753) Journal
        Since this is a legal document which is going to be used in court proceedings, I would say that conspiracy to pervert the course of justice would be a better charge...
        • 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 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?

    • by evanbd (210358) on Friday March 09, 2012 @01:45PM (#39302563)
      On a related note, I'm curious what part of this is a "mistake". I think a better headline would be something like "SFPD Breathalyzer Fraud Puts Hundreds of DUI Convictions In Doubt".
    • 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.

  • "Err, Opps! there is an error here. Let me check that again"
    • by ackthpt (218170)

      "Err, Opps! there is an error here. Let me check that again"

      Suggestion: Use the thing that they breath into, not the RADAR gun.

  • by Karl Cocknozzle (514413) <kcocknozzle.hotmail@com> on Friday March 09, 2012 @01:34PM (#39302409) Homepage

    This is fraud: A police officer accepted a paycheck for work and services he did not perform. That's fraud, and the officer should be relieved of duty and terminated from employment. Cops aren't above the law, or accountability, and it sounds like whoever fraudulently filled out the forms using the baseline measurements engaged in fraud.

    • by Ogive17 (691899) on Friday March 09, 2012 @01:36PM (#39302449)
      Are you committing fraud by reading/posting on /. from work?
      • by Jah-Wren Ryel (80510) on Friday March 09, 2012 @01:46PM (#39302587)

        Are you committing fraud by reading/posting on /. from work?

        That's like asking if a cop is committing fraud by eating a donut.

      • by nedlohs (1335013) on Friday March 09, 2012 @01:57PM (#39302741)

        That would depend on whether you are "on the clock" at work and what you and your employer agreed to.

        If you filled out a timesheet saying you spend that time doing something else then almost certainly yes. Which is the main difference in this actual case - the people involved documented that they did the work even though they didn't. That's where the fraud is.

        Magnified by the fact that their fraud could send innocent people to jail. Or if you are a MADD supporter that their fraud could let drunk divers off the hook (calibration errors work both ways after all).

        But they're cops, if lying on paperwork got them in trouble there wouldn't be any left.

      • by geekoid (135745)

        Not if my employers are aware of that fact.

    • by Hatta (162192)

      This is worse than fraud. When you're defrauded, you're only out dollars. Being falsely accused of a DUI can ruin a person's life.

    • by fermion (181285)
      I would go even further. If I were supervising a lab, and every calibration came in as a simple spot on reading, I would pretty much know that the calibrations were not being run. I would expect to the at least the occasional off reading with evidence a correction has been made. As such the supervisors and/or process were defective and require adjustment. If the officers were allowed to write done numbers without testing, that is just human nature. We have no evidence that they were not trained to so d
  • Gosh. That couldn't happen before *cough* where I work *cough*.

  • by Ellis D. Tripp (755736) on Friday March 09, 2012 @01:34PM (#39302419) Homepage

    A mistake would have been using the wrong calibration procedure or something. Deliberately NOT PERFORMING the required calibration and falsifying the report forms is not a "mistake", it is outright FRAUD, and the pig or pigs responsible need to be held responsible.

    Of course, that ain't gonna happen here in the United Police States of Amerika...

    • They need to go to jail for this. It's down right criminal. Hundreds of people may have gone to jail unnecessarily because of the crime these officers committed.

  • 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.
  • That's not a mistake. That's negligence and dereliction of duty.

    Cops are always telling us the shit they do is about our safety. So this must be about not giving a damn if we're safe. Fire 'em all.

  • by gelfling (6534) on Friday March 09, 2012 @01:35PM (#39302445) Homepage Journal

    That a police department would use questionable tools and tactics to secure large numbers of convictions that also result in large fines.

  • by elrous0 (869638) * on Friday March 09, 2012 @01:36PM (#39302451)

    take THAT offfficeer i-know-everrything

  • by talexb (223672) on Friday March 09, 2012 @01:36PM (#39302455) Homepage Journal

    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.

    • 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.

    • You sound like one of those pointy-headed intellectuals who get all worked up about 'accurately' 'measuring' 'external reality'...
  • by rwv (1636355) on Friday March 09, 2012 @01:38PM (#39302473) Homepage Journal

    IMHO, testing ought to be done by the vendor and calibration ought to be done by cognizant, technical individuals who have a minor amount of ethics. For a test person to fill in "sample data" is evidence that (a) these things don't work, or (b) the test person was either incompetent or unethical (and neither of these is acceptable in an industry related to the security of the public like law enforcement).

    • I wouldn't necessarily trust the vendor further than I could throw them "Yeah, sorry guys, our testing indicates that our product is broken and we need to replace it under warranty". In the context of criminal justice, where we use the 'adversarial' legal system under the theory that the contesting sides provide the best chance of achieving the correct answer, it would seem more appropriate for the testing and calibration of forensic apparatus and technique should really be the job of an independent entity
    • by jc42 (318812)

      For a test person to fill in "sample data" is evidence that (a) these things don't work, or (b) the test person was either incompetent or unethical (and neither of these is acceptable in an industry related to the security of the public like law enforcement).

      Well, maybe. But it's well known in the software industry that a large percentage of users of most software will handle "fill in the form" situations by copying the examples in the manual. When you talk to those users, they usually think that the manual was telling them that those were the correct values, so of course they used them. If they make up their own values, chances are they'll get them wrong, but if they use what the manual says, it has to be right, doesn't it?

      I was tempted to end that with

  • by sexconker (1179573) on Friday March 09, 2012 @02:25PM (#39303151)

    Police officers are generally polite, respectful, and concerned for your safety.
    Police departments are generally corrupt, bureaucratic, and don't give a shit about your safety.

    For every asshole, rights-stomping cop there are several good ones. Unfortunately, they're powerless to do their sworn duty and protect you from the asshole cops and the department as a whole.

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