More than 1 million Americans are arrested for drunk driving each year after being subjected to a battery of tests that try to determine if their blood alcohol concentration (BAC) is above the legal limit of 0.08%.

One of the first tests involves the use of a Breathalyzer or other breath test device designed to measure a person’s BAC level. However, a New York Times investigation found these machines, used by just about every police station in the U.S., frequently generate false readings.

Judges throw out breath test evidence

In the past year alone, judges in New Jersey and Massachusetts have tossed more than 30,000 breath test results citing human error or problems properly calibrating these devices. Thousands of other tests have also been rejected in recent years.

Some of the manufacturers claim their machines are accurate to within 0.001% for BAC readings. However, the Times report says, in many cases, these devices routinely report results that are up to 40% too high.

Top three takeaways

As a result of its months-long investigation, the Times noted these primary findings:

  • Unreliable testing devices: Courts have thrown out breath test evidence in more than 50,000 cases in recent years due to problems with individual machines, mistakes by officers implementing them and lab mistakes in setting up and maintaining the devices.
  • Manufacturer secrecy: The makers of the devices consider their technology to be a trade secret, which keeps defense lawyers and independent experts from closely examining their design. Also, labs and police stations manage tests with little oversight, meaning frequent mistakes are rarely reported.
  • Large-scale consequences: Flawed breath tests have led to 13,000 New Jersey drivers seeking to have their convictions overturned. Massachusetts also threw out every breath test result for eight years.

Refusal to take test results in a separate charge

Despite the fact that widespread flaws have been discovered using breath tests to determine whether drivers are charged with DUI, there is no avoiding them as New Jersey’s “implied consent” law makes it a crime to refuse to take the test. If you are charged with DUI, an experienced defense attorney here in New Jersey will protect your rights and aggressively challenge any evidence used against you.