The Supreme Court of the United States (SCOTUS) recently rejected a motorist’s challenge to the reliability of the machine used in California to test the blood alcohol content (BAC) of drivers. The justices denied review of a state Superior Court ruling that concluded that the machines are accurate and can be used to determine if whether a driver’s BAC was over the legal limit of .08%.
The state court noted that the devices have been studied by the Legislature and certified by the U.S. Department of Transportation. The ruling meant that the defense can’t present testimony from scientists who contend that breath-testing machines are inherently unreliable, although a defendant can try to show that a particular machine was defective or was used improperly, the court said.
The case was initially filed in San Diego County. California Highway Patrol Sgt. Richard Berg pulled Terry Vangelder over for driving at excessive speeds (125 mph). Vangelder consented to permitting the police officer to administer two breathalyzer tests which registered his BAC at .095% and .086%. At the police station, the breathalyzer test produced two 0.08% readings.
At trial, Vengelder’s counsel offered testimony claiming that breath-testing machines are notably inaccurate because they measure the content of exhaled air which can be affected by several variables. The jury convicted Vangelder of drunk driving and his attorney appealed the case which was later reversed. The San Diego City Attorney’s Office appealed the case to the California Supreme Court.
The California Supreme Court held: “[D]efendant remained free to argue, and present evidence, that the particular machines used in this case malfunctioned, or that they were improperly calibrated or employed. But the fundamental reliability of the breath-testing models used in this case to produce results that are pertinent to the [§23152(b)] has been determined by the Legislature. That legislative determination is not subject to rebuttal as a defense in a criminal prosecution.”
The case was appealed to the SCOTUS which denied hearing the matter. The results of this case come as no surprise to me. The court was right in ruling that not all machines are inherently defective and that the quality of a machine should be reviewed on a case-by-case basis. However, a better challenge would have been claiming that certain substances can affect breathalyzer test results. For example, it has been scientifically proven that certain non-alcoholic substances in the mouth may affect test results.
The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousands of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.
If you have been convicted of driving under the influence in Ann Arbor, contact my law office for a consultation. I provide criminal defense representation to Washtenaw County residents charged with OWIs.
Vangelder vs. California, No. 13-1012