According to the Ventura County District Attorney’s Office, eight of the county’s handheld breath testers used to estimate the blood-alcohol content of DUI suspects have recently been found to be defective. The faulty devices were used to justify an unknown number DUI arrests between January 20 and March 31 of this year, but the county did not discover that the devices produced erratic readings until recently.

Potentially, hundreds of pending DUI cases could be dropped and numerous DUI convictions could be reversed for lack of reliable evidence. Last week the District Attorney’s Office sent memos to local criminal defense attorneys to notify them of the problem.

According to the supervising attorney with the DA’s felony unit, the office is reviewing records to determine how many DUI defendants may have been arrested based on results from the faulty devices. As the county owns 128 of these particular brand of breath testing devices, presumably about 6.25 percent of all DUI arrests in Ventura County during their use could be tainted.

Although the affected DUI cases will be reviewed, some defendants are already serving jail time because they were convicted or pled guilty as a result of the flawed evidence. Some defendants were likely also subjected to enhanced penalties for blowing .15 or higher, which may not have been warranted due to the inaccurate readings.

“Truthfully, there is a whole cornucopia of problems that will likely arise,” said Ventura County’s chief deputy public defender.

County boasted that these smaller, faster breath testers would improve public safety

In a January news conference, the Ventura County Sheriff announced the purchase of the breath testing devices, which are the newest model by the manufacturer of the breath testers the county was already using. The purchase was funded through a grant from the California Office of Traffic Safety through NHTSA, and each of the county’s 128 devices cost about $4,800, and the Sheriff said the new devices would promote public safety because they could provide an accurate, instant reading of a driver’s blood-alcohol level. Every law enforcement agency in Ventura County uses the new model.

In announcing the problems with the devices, an assistant sheriff explained that the devices found to be defective had a faulty mouthpiece, which caused them to provide “irregular readings.” Those devices believed to be defective have been pulled from use and will be repaired, a process that could take several months.

The assistant sheriff said that the devices will have to be 100-percent accurate before the county will use them again. But DUI defense attorneys have challenged the reliability of Breathalyzer devices for many years, as one local DUI lawyer pointed out. More recently, the pressure to make the devices cheaper, smaller and faster has opened the door for design flaws.

Beyond the criminal penalties, costs and driver’s license suspension that come with a DUI conviction, there is another penalty for the wrongly accused, said another local DUI lawyer: “The embarrassment of going through the process only to find out that the evidence was not reliable.”

Source: Ventura County Star, “Defective breathalyzer could lead to tossing out hundreds of DUI convictions,” Raul Hernandez, April 19, 2011