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Breathalyzers are not effective to measure BAC

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Breathalyzers: Why Aren’t They Effective at Measuring BAC Levels?

If you are facing a driving while intoxicated (DWI) charge in New Hampshire, you will have had (unless you specifically refused) some sort of chemical test to determine your BAC (blood alcohol content) levels. The majority of cases will have used a Breathalyzer machine to conduct the test. When you appear in a New Hampshire court, you will discover that you have been charged with two criminal offenses, instead of the one you expected.

The first offense will be what is referred to as a “per se” offense: operating a motor vehicle while your BAC levels were .08% or higher. No one really cares whether or not you were intoxicated. All of the evidence could point to sobriety: the crime was not your condition, but your chemical composition. A machine provides the sole source of evidence upon which you will acquitted or convicted.

The second offense you will be charged with is driving while intoxicated. In each instance, a prosecutor will “prove” you were driving under the influence of alcohol by offering up the results of your Breathalyzer test. Moreover, the jury will be instructed to presume your guilt unless you can prove otherwise.

You heard that correctly: the presumption of guilt. Again, this is being based upon a machine’s results. It all comes down to a single machine. Your guilt or innocence solely depends upon what this machine says. Let’s take a closer look at this all-important machine…

“Breathalyzer” is a catch-all name for breath test machines – taken from the original Breathalyzer 900. In fact, there are actually a number of different manufactures and models of breath test machines today. For the last decade, the most popular model has been the Intoxilyzer 5000, which is produced by CMI Inc. How reliable and accurate is this particular machine when it comes to measuring a person’s blood alcohol content?

What is the manufacturer’s opinion? How confident are they that their product is reliable enough to send a person to jail? Let’s take a look at the following statement taken directly from the Intoxilyzer 5000’s warranty:

"CMI, Inc., a subsidiary of MPD, Inc., warrants that each new product will be free from defects in material and workmanship, under normal use and service, for a period of one year from the date of delivery to the first user-purchaser…."

This machine is only warranted for ONE year? It is not uncommon for the machines found at various law enforcement agencies to have been in service for 5-10 years. What if the machine develops a problem that requires repair from the manufacturer?

"Repaired components are warranted for a period of 90 days from the date of repair."

Only 90 days? Personally, our washing machine has a better warranty than this. The warranty also states:

"There are no other warranties expressed or implied, including but not limited to, any implied warranties of merchantibility or fitness for a particular purpose….

If we understand this wording correctly, CMI Inc. is refusing to warrant their product for any “particular purpose.” The Intoxilyzer 5000 is specifically designed to measure the amount of alcohol on a person’s breath, but CMI refuses to guarantee that it will accurately do so? This is a wonderful example of the tools law enforcement agencies are using to prove guilt “beyond a reasonable doubt”.

CMI Inc.’s warranty goes on to state that the manufacturer cannot be held responsible for any “indirect or consequential damages” that arise from defects in the workmanship or materials. Simply stated, if you are sent to jail because of defects in the Intoxilyzer 5000, you cannot sue CMI Inc.

The truth is, for the first time in America’s legal history, people are being convicted of criminal offenses based solely on what a machine says. How sure are we of their accuracy? How sure are the manufacturers?

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Disclaimer: Past results do not guarantee a future outcome. Results include cases in both Massachusetts and New Hampshire. Attorney Dan Hynes is admitted to practice law only in Massachusetts and New Hampshire. This website may be considered advertising. Contacting us does not create an attorney/client relationship. We work with other lawyers throughout Massachusetts.

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