Steven Epstein and Alexander Klein Share Their Insights into a Recent Ruling by the New Jersey Supreme Court That May Invalidate 20,000 DWI Prosecutions

A recent decision by New Jersey’s highest court calls into question the reliability of breath tests in more than 20,000 DWI cases across the Garden State.  It should serve as a wake-up call in our own state, New York, to more closely examine our breath testing quality assurance programs. 

DWI is a public concern. Breath testing is the most utilized tool used by police officers in New York to combat the dangers posed by driving under the influence of alcohol. Since these machines are used to test individuals suspected of driving while intoxicated, the reliability of breath testing devices is necessary for not only fairness to those accused but also to ensure the integrity of the investigations and convictions obtained against drunk drivers.

The errors committed in New Jersey concerned the manner in which certain breathalyzer machines were being maintained and used.  In response, the New Jersey Supreme Court took the dramatic step of ordering state authorities to put on notice everyone whose case involved results from those troubling machines—whose case outcomes are now in question. The consequences of these errors could affect a quantity of motorists in the tens of thousands.

Of course, machines are only as reliable as the way they are maintained and used. A machine is only as good as the person that uses and maintains it. We see examples of this in everyday life. No one questions the need to do regular oil changes for the vehicles we drive or update the software on our phones regularly.  Breathalyzers are no different.  Fundamental to the reliability of measuring devices is having sound quality assurance programs in place.  It is therefore incumbent upon practitioners, legislators, judges, and even defendants to sound the alarm that New York’s quality assurance program for breath testing needs to be examined. Otherwise, what happened in New Jersey might not stay in New Jersey.

Indeed, many aspects of New York’s quality assurance program are lacking. These include the lack of true calibration of breath testing devices; the way the devices are used; and the way records of breath testing are kept by law enforcement officers—only to name a few.

All quality assurance programs—for any measuring device—require that the machines be regularly calibrated. Calibration is like a guitar tuner: a process by which an instrument is taught how to respond to future inputs, so adjustments can be made to assist the device in reporting future measurements accurately across a spectrum of possible results. Like a guitar, regular calibrations on a breathalyzer are needed because over time it can drift out of tune.

And yet, the current regulatory scheme in New York allows certifications to take the place of calibrations. A certification is a process by which a measuring device is presented with a reference standard and the machine is tested to see if it can accurately measure that particular result. But this type of testing is not sufficient, because it only ensures the reliability of a device at a certain measurement.  Unlike calibration, it does not ensure reliability over a spectrum of possible results, which is the type of real-world testing that is required for breath testing.

Another fundamental part of any measuring device’s quality assurance program should be replicate testing. Two measurements should be made to protect against errors in the process. Simply put, measure twice, cut once. Yet in New York our current regulations permit, but do not require, one sample of breath to be taken and measured. This makes all breath tests subject to attack in court.

Even the way New York keeps its records of maintenance is problematic. Unlike other states, such as Florida, which makes its records available to the public, records of regular maintenance of breath testing devices in New York are often kept secret from even those facing charges of driving while intoxicated.  Unsurprisingly, this often results in time-consuming discovery motions that are costly to our system of justice.

DWI is a serious problem that can have devastating consequences. That is why we must have a sound quality assurance program in place in New York for breath testing; without it, New York will face the same fate as New Jersey and risk losing the trust of its prosecutions and, even worse, the finality of convictions obtained.