Breath Tests Take a Hit

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The California Supreme Court has decided to make drunk driving convictions even harder to get than they are now:

Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage….The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual’s medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said.

“The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence” in certain cases, Justice Carol A. Corrigan wrote. The court’s answer was yes.

….San Bernardino County Deputy Dist. Atty. Mark A. Vos, who prosecuted the case before the court, said the ruling was “going to make DUI trials a little more difficult to put on” because more technical evidence will be permitted. The numbers are going to be flying back and forth in DUI trials, so prosecutors are going to have to adapt,” Vos said.

I guess things have changed.  This kind of evidence was presented ten or fifteen years ago in the DUI case I sat on, but I suppose it must have been outlawed at some point since then.  This court ruling (PDF) makes it admissible yet again.

(Ah, I see: this AP story says the Supreme Court barred drivers from attacking the variability of breath tests in a 1994 case.  I think my case was a year or two before that.)

As a legal matter, this might be the right ruling.  I don’t know — but the decision was unanimous, which suggests there was little controversy about it.  As a practical matter, though, it’s a pain in the ass.  In the trial I sat on, the defense attorney played up this stuff for all it was worth, essentially trying to convince the jury that breathalyzer tests were so variable as to be completely useless.  And it almost worked.  Most of the jury was initially willing to let our guy walk because they were so confused by all the testimony that they figured there just had to be reasonable doubt.  It basically turned the case into a circus — and one that, needless to say, can only be played by wealthy defendents who can afford fancy lawyers.

I was disgusted by the whole thing.  If there’s a very specific reason to think a particular breath test is wrong — equipment malfunction, relevant medical condition, etc. — then I wouldn’t mind this kind of testimony.  But just as a general catchall to allow defense attorneys to throw mud on the wall and confuse people?  No thanks.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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