Busted for DUI? Sue the breath test manufacturer

by Walter Olson on August 16, 2013

After pleading guilty to driving under the influence, two New Jersey men “subsequently brought a product liability action against the company that made the breath-testing device used to establish their BACs as being in excess of .08%.” Asking for class action status on behalf of all New Jersey drivers convicted after blowing into the device, the “plaintiffs claimed that ‘the Alcotest 7110 contains latent design defects in that it is a piece of respiratory equipment that is not standardized at frequent intervals and there is no provision for calibration of its pulmonary reporting apparatus.’” A court ruled the complaint inadequate on the pleadings, though it has given them a chance to replead. [Steve McConnell, Drug and Device Law]

{ 9 comments }

1 Scott 08.16.13 at 8:01 am

As someone who works at a medical science,. I’m sympathetic to the idea that the equipment isn’t calibrated or even the calibration checked.

2 Mike 08.16.13 at 9:40 am

Standing?

3 Scott 08.16.13 at 3:20 pm

I’m sympathetic to the idea that the equipment isn’t calibrated or even has the calibration checked.

4 Jack Olson 08.16.13 at 5:32 pm

I could understand their suit if they pled not guilty to the DUI and argued they were convicted on the erroneous evidence of an unreliable instrument. But, as it is, they pled guilty to the DUI charges, agreeing that the device correctly identified their blood alcohol as above the legal limit. So, what harm has the manufacturer of it done them?

5 Jim Collins 08.16.13 at 5:54 pm

How do you calibrate some thing that has a plus, minus tolerance of 30%?

6 0x0077EF 08.17.13 at 4:15 pm

Jim Collins:

Just because it’s imprecise doesn’t mean that it should be more inaccurate than necessary. If you don’t calibrate it and it’s likely to drift over time, your error bars get wider, so if you start at +/- 30% you might end up at +/-100% after a year with no calibration. It’s not an absurd prospect.

7 Hippopotamous Nicholas 08.17.13 at 11:06 pm

I’ve long been under the impression that these machines are untrustworthy and lead to false convictions. I absolutely believe that the manufacturers should be required to publish the details of both the hardware and the software for verification purposes. I don’t know the details of this case but any legal action that improves the reliability and public confidence in these machines is good.

8 Invid 08.17.13 at 11:08 pm

Breathalyzers can be problematic.
http://www.duiblog.com/

9 Jim Collins 08.18.13 at 4:07 pm

I worked with a Chemical Engineer who helped develop the modern sensors used in breathalyzers. He told me that when they were designing them the intent was that they be used to give the Police probable cause to obtain a blood sample for testing. Now they are considered to be Judge and Jury. One of the problems with them is that their readings are assumed by law to be the measured amount of ETHYL alcohol in the blood. These machines don’t measure just ETHYL alcohol, they measure the quantity of a certain METHYL group. These chemicals can include Acetone, Rubbing Alcohol, Naphtha (lighter fluid) Gasoline, Toluene, and others. These chemicals are absorbed through the skin and leave the body through the breath and urine. A good friend of mine is a local Police officer. We spent a long day doing fiberglass work on his boat. when we finished I asked him what he was doing that evening. He was giving the DUI dog and pony show to a group of Boy Scouts. I jokingly told him not to let them talk him into blowing into the breathalyzer. The next day he called me and asked why I told him that? I asked why and he told me that he did let them talk him into blowing into the machine. His reading was a 1.7.

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