News

Breathalyzers found at fault in DUI cases

District Attorney reviews 865 cases in Palo Alto, San Jose after finding problems with breath-test devices

Santa Clara County prosecutors are taking a fresh look at hundreds of driving-under-the-influence cases in Palo Alto and San Jose after they learned Tuesday that the police departments in those two cities were using faulty alcohol-prescreening devices.

Both departments have been relying since last year on the Alco-Sensor V, an alcohol-prescreening device that prosecutors say sometimes malfunctions. Police use the device to measure a driver's blood-alcohol content.

The District Attorney's Office said the device has been used by the San Jose Police Department since November 2010. The Palo Alto Police Department has been using it since April 2010.

Prosecutors are now in the process of identifying 865 cases in which officers used the Alco-Sensor V devices to determine that a driver was intoxicated. They expect this process to take at least a month.

Once these cases are identified, the office will reach out to the relevant defense attorneys and unrepresented defendants, the District Attorney's office said in a statement. These devices, the statement noted, are "not in widespread use throughout Santa Clara County, nor were they the primary device used to determine a suspect's blood alcohol content."

Deputy District Attorney Rob Baker said the device is one of many tools officers have for determining a driver's level of intoxication. It is typically used after the driver has taken other tests, including walking in a straight line and counting numbers. The most important test is the chemical test the suspect takes at the police station after the arrest, he said.

Baker said the county's review includes 133 cases in Palo Alto, which stopped using the devices last December.

"It's only one factor in determining if the person is under the influence," Baker said, referring to the faulty devices. "I don't think it will result in a huge number of reversals or a lot of cases coming back to court."

Comments

Like this comment
Posted by What's-A-Good-Calibration-Worth?
a resident of Another Palo Alto neighborhood
on May 4, 2011 at 10:21 am

From this story, and others in the local papers, the convictions may not be overturned, because a second "Breath-a-lyzer" was involved. None of the articles provide any information about how incorrect the alcohol content might be. Was it oversampling, or under-sampling?

However, what's missing from all of these stories is the word "calibration". No piece of equipment that is used to "measure thing" should be accepted from the manufacturer without calibration tests to insure that the results of the new equipment matches some sort of recognizable standard.

And, this equipment needs to be calibrated ever-so-often, to insure that normal use, or abuse, hasn't cause the equipment to "drift".

Do the Palo Alto Police have SOPs (Standard Operating Procedures) to do this calibration? Does the Department keep records if they do? What do the records say? Who was the person doing the tests?

Only the Police Department knows for sure. Wonder if they will be explaining to the public why these highly paid officers never thought to calibrate this equipment, or why the calibration tests failed, if they did calibrate the equipment.


Like this comment
Posted by Careful Reader
a resident of Menlo Park
on May 4, 2011 at 10:48 am

"What's a good Calibration Worth" knows nothing. Doesn't know if the breathalyzers are calibrated. Doesn't know if they can be calibrated. Doesn't know if the police have procedures for properly using these devices. Doesn't know the cause or circumstances for the devices to "sometimes malfunction." Calibration is not even mentioned in the article.
Yet he or she disparages the police, and implies that they are unprofessional and incompetent. Until evidence surfaces showing otherwise, I think the police deserve the benefit of the doubt. I don't believe our police are perfect, but really, give them a break until you actually know something relevant about the issue.


Like this comment
Posted by Anon.
a resident of Crescent Park
on May 4, 2011 at 10:52 am

from the article:
> ... These devices, the statement noted, are "not in widespread use
> throughout Santa Clara County, nor were they the primary device
> used to determine a suspect's blood alcohol content."

> Deputy District Attorney Rob Baker said the device is one of many
> tools officers have for determining a driver's level of intoxication.
> It is typically used after the driver has taken other tests, including
> walking in a straight line and counting numbers. The most
> important test is the chemical test the suspect takes at the police
> station after the arrest, he said.

How much you want to wager this is motivated at the bottom of it by some very rich person and their lawyer that doesn't want to suffer the consequences of their illegal actions - like the lady from Atherton who was arrested the other day and had gotten out of it nine time before or something outrageous like that?

This is all just some fancy lawyering it sounds like to me. Get an article full of innuendo in the media and then blame it on the police who is appears check the person multiple ways when they are arrested.


Like this comment
Posted by What's-A-Good-Calibration-Worth?
a resident of Another Palo Alto neighborhood
on May 4, 2011 at 11:32 am

> Doesn't know nothing ..

Well, WAGCW? knows that virtually every piece of equipment used for measuring things does need calibration.

> Doesn't know if the breathalyzers are calibrated

And why should WAGCW? know about this specific equipment? Why shouldn't the DA, and/or the Weekly, brought up the question.

Radar used for speed monitoring is calibrated, speedometers are calibrated, virtually all equipment in laboratories is calibrated, so why is it not a reasonable assumption that this particular piece of equipment also needs to be calibrated.

> and their lawyer

Yes, that's what lawyers do. They advocate for the accused. What's interesting here, is that the police have purchased, and deployed, a piece of equipment that does not generate correct results. They have failed to calibrate it, and possibly have wrongly convicted some drivers who had been drinking. But what about the second piece of equipment? Was it properly calibrated also? Does the police ever bring in a testing lab, and get a second testing from a credible testing company?

Not certain why we should give the benefit of the doubt to the police, who are supposed to be held to a higher standard than the rest of us?

How many people really want to be convicted wrongly, and not hold the police who provided false evidence to account?


Like this comment
Posted by the_punnisher
a resident of Mountain View
on May 4, 2011 at 11:33 am


Having been a SENIOR CALIBRATION TECH for AMD, I know the equipment needs to be calibrated and a proper log kept on ALL equipment.

The bottom line: Someone didn't think that the PUBLIC SECTOR shouldn't " waste money " on a 6 month calibration schedule for the TOOLS USED IN LAW ENFORCEMENT...

That decision rests directly on the shoulders of the administration at ALL LEVELS.

I'll tell you what; If we didn't calibrate our equipment on a MONTHLY basis, most of you wouldn't have an Internet to comment on...

AFAIK, most " tools of the trade " for LEOs HAD TO BE CALIBRATED DAILY and the logs kept for evidence if someone protested a speeding ticket when RADAR/LIDAR was use...or does a special dispensation ( for revenue enhancement ) by a crooked legal system change the rules?

It looks like a LOT of $$$ are going to flow our of the " revenue enhancer departments " ( AKA local poLICE ).

" penny wise, pound foolish "


Like this comment
Posted by Joe
a resident of Barron Park
on May 4, 2011 at 11:52 am

Just to be clear, the issue is not strictly with the CALIBRATION of the devices, but a DEFECT in the Alco-Sensor V breathalyzer itself. The SJ Mercury reports: "(devices) may have shown incorrect readings because of a manufacturer's error that can cause condensation to build up in the tube." Web Link



Like this comment
Posted by What's-A-Good-Calibration-Worth?
a resident of Another Palo Alto neighborhood
on May 4, 2011 at 12:20 pm

> the issue is not strictly with the CALIBRATION of the devices,
> but a DEFECT in the Alco-Sensor V breathalyzer itself.

Be that as it may, it's difficult to believe that periodic, by-the-book, calibrations would not have caught this problem. At some point, no matter what the manufacturer's defect might be, the readings would drift, and that should have raised a "red flag" for the local police department management to investigate.

This sort of problem (erroneous readings) could be caused by dropping the device--with/without a manufacturer's defect. Frequent calibrations is how an organization detects these sorts of problems as quickly as possible.




Like this comment
Posted by Anon.
a resident of Crescent Park
on May 4, 2011 at 1:05 pm

> "(devices) may have shown incorrect readings because of a manufacturer's error that can cause condensation to build up in the tube."

Thank you for that information.

"May have" ... this is fancy lawyering for a rich person with a drinking problem.

I doubt the calibration procedure does not set the whole device to some known state ... ie. without condensation before it's run. Since there are other checks on this including the police's observations such as behavior and field sobriety test ... why is this a big deal?


Like this comment
Posted by Resident
a resident of Midtown
on May 4, 2011 at 1:24 pm

The police don't prosecute a DUI, the DA's office does. And as pointed out by several, other tests are used later to fix the actual degree of intoxication. The Alco Sensor V is only one on-the-site field test to determine the likelihood of a person's DUI status.

There are a few people who hate authority and the police are favorite targets whether justified or not. Being a cop is a tough job requiring quick response to a possible crime. Their training is rigorous and they get most decisions right. I'm glad they are willing to put their lives on the line every time they leave the station. It's not for me.


Like this comment
Posted by Bryan
a resident of Embarcadero Oaks/Leland
on May 4, 2011 at 1:59 pm

Just goes to show that if you serve on a jury, don't always take "scientific" evidence as gold. A good lawyer knows the weak points of "expert" scientific testimony.


Like this comment
Posted by What's-A-Good-Calibration-Worth?
a resident of Another Palo Alto neighborhood
on May 4, 2011 at 7:55 pm

I doubt the calibration procedure does not set the whole
device to some known state

> why is this a big deal?

You'll have to ask the DA. Presumably a defense attorney was able to find the problem, and has presented it to the DA in some fashion that concerned the DA enough to want to review all of the cases where this specific equipment was involved. Since there were two different equipment types involved in determining the blood alcohol limits of detained motorists, the convictions being reviewed might well stand.

One key question that the DA should be asking is: "what calibration tests are in place, and are the calibration logs properly filled out.

This is a big deal, because DUIs can result in incarceration, the loss of one's driving license, and the loss of income. The equipment used by the police should be correct within some acceptable margin of error, for each unit used in the field, and at the Station. If it is not, then people can be wrongly convicted. Since alcohol content dissipates rather quickly, a detained motorist would not be able to be retests the next day to disprove the erroneous results of a faulty breath-a-lyzer.

It's frightening that people don't understand this basic issue.

> put their lives on the line every time they leave the station

Well, maybe, but not in Palo Alto. The BLS employment mortality data shows lumber jacks, and crewmen on fishing trawlers as some of the most lethal jobs in the US. Police are way down on the list.

> Just goes to show that if you serve on a jury, don't always take
> "scientific" evidence as gold.

An interesting comment.

> A good lawyer knows the weak points of "expert" scientific
> testimony.

This is kind of a frightening reality of the legal system. It's very procedural, and most of the people in the system don't understand the exactly how "science" works, or how to set "checks and balances" in place so that these sorts of problems don't happen (or at least too often).

This problem lies with the Chief of Police, who is supposed to be managing the process, as well as the employees. This is a failure that might have been found by a performance audit of the police department, but given that the important divisions of Palo Alto City Government are off-limits to the Auditors office (eg--police, fire, utilities), then it's not surprising that to learn that this happened.

What will be interesting to see what happens next. This calibration issue involves the following police equipment: breath-a-lyzers, speedometers, radar units, Tasers, and anything else that measures "things", the results of which can be used as evidence to indict/convict people.

This is a big deal because right now no one knows if there is a rigorous, and comprehensive, calibration program in place in the Palo Alto police department, and also all of the other police departments in Santa Clara County, as well as all of California.

> There are a few people who hate authority

Well, maybe. But there are also people who believe that people in Authority have an obligation to do the jobs that they are paid to do, and to be held accountable when they fail at those jobs. This is not "hate", it is simply a belief that "self-governance" can work when "checks-and-balances" are in place, and people who fail to perform are replaced by people who can.

> why's this a big deal.

Well, at the least, it's a big waste of time and money, since a simple calibration test could have most likely found this problem.


Like this comment
Posted by annoyed
a resident of another community
on May 4, 2011 at 10:24 pm

The Palo Alto Police Department Alco-sensor is calibrated on a regular basis. It is a problem with the machine, not the operators who receive training and certification before they can use it.

Do you blame the driver of a car who gets regular services when a recall is made because of defective equipment. I thought not.


Like this comment
Posted by the_punnisher
a resident of Mountain View
on May 5, 2011 at 11:23 am

Annoyed: your comment is BS.....

By REGULAR calibration schedules, the BAC level is artificially created; that is the key to ALL calibration of equipment, you use a GOLD STANDARD ( Literally a " Good as Gold " ) BASELINE measurement certified by an INDEPENDENT AGENCY...NIST is what we usually use on test instruments.

If you calibrate, the measuring device either MEETS OR FAILS calibration; there IS NO FUDGE FACTOR.

Someone is LYING. I think it is obvious who got caught.

These devices would have FAILED on an incoming inspection...that is if one was even done by the " revenue enhancers " and City Hall...


Like this comment
Posted by coooper
a resident of another community
on May 5, 2011 at 12:03 pm

I'm not so sure the DDA is telling the truth about multiple test devices. I wouldn't regard walking the line as a device. And from my (secondhand) knowledge, the roadside blow test is the only test drivers are likely to get. Wise drivers should insist on a blood test only, for reliability.


Like this comment
Posted by annoyed
a resident of another community
on May 5, 2011 at 7:04 pm

Punnisher....you are right that an artificial medium is used to create a measurement. The medium is supplied by an independant agency. You are right..the machine either passes or fails or it is taken out of service.

What part was bs.


Like this comment
Posted by annoyed
a resident of another community
on May 5, 2011 at 7:09 pm

Oh and did I forget to mention that the machines are owned by the County. Palo Alto just uses the one issued by the County Crime Lab.


Sorry, but further commenting on this topic has been closed.

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