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The "And" Problem: Why using the Term "legal technicality" in DWI law is wrong

"Legal technicality means that if you were charged with a DWI over the past several months, you can go free" has been a continuous talking point lately. Over the past few weeks, newspapers have covered the story of a "mistake" in the law that threaten the admissibility of breath tests for people suspected of driving under the influence.  (See here and here).

The basics of the controversy are as follows:  For some time,  19 CSR 25-30.051(2), the law that controls how breath test machines must be calibrated, read as follows:  Standard simulator solutions, used to verify and calibrate evidential breath analyzers, shall be solutions from the approved suppliers.  The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

            (A) 0.10%;

            (B) 0.08%; AND

            (C) 0.04%.

Simply put, breath test machines operate by measuring the amount of alcohol in the breath.  The only way to judge whether or not the machine is reading accurately is to test it every 35 days by using an approved solution that has been measured to contain .10% .08% and .04% alcohol.  By using these solutions as a control group, the breath test is calibrated so that the suspects' breath can be more accurately measured.

Here's where the controversy starts.  For years, despite what the law said for the past 14 months, law enforcement throughout the state has only been calibrating the devices using one of the approved solutions instead of all three.  It had been their practice to do so prior to the change in the law and they never updated their practices.   Defense attorneys have therefore argued successfully against the admissibility of the breath tests because law enforcement did not follow the scientific procedures the law told them to follow.

After picking up on the story, the press has been labeling this as a "legal technicality" and that it may let thousands of drunk drivers go free.  This is the wrong way to approach the message of this story.  First of all, even if the breath test is not admissible, the rest of the case against the purported drunk driver should still be admissible.  The breath test is not the only part of a prosecutor's case, nor should it be.  The idea that because one piece of evidence is inadmissible so the charges get dismissed is ludicrous, it just makes the case against the person less of a slam dunk.

Secondly and more importantly, this should not be dismissed as a simple "legal technicality".  It is a scientific technicality.  When dealing with an infrared spectrometer that attempts to measure the content of a substance to one-one-thousandth of a percent, technicalities are vital.  Despite what the press and prosecuting attorney offices tell the public, this machine is not a magic box that tells us whether or not a person has control of their faculties and should or should not be driving.  It is a highly technical device that requires constant maintenance and calibration to ensure that it can do its job effectively.  This maintenance includes testing the device using fluids with pre-established alcohol contents.  Without this calibration, using the device to detect alcohol content in deep lung air is about as accurate as blowing on a magic 8-ball and having it determine whether people should go to jail and have their lives ruined by a DWI conviction.

Others have dismissed the change in law and the blunder by law enforcement as simply a scrivener's error, or that the law was just written incorrectly, and therefore judges should still admit the breath test results.  To do so sets a very dangerous precedent that would seem to state that it's ok when a court or law enforcement wants to change the law on their own.  It says that cops and judges can pick and choose which laws they choose to enforce and dismiss those that they don't feel are correct.

Besides that, there are ample reasons why this is likely not just a mistake in writing the law.  It's not like using more than one calibration for breath testing devices is unheard of.  In fact, other states mandate it. Pennsylvania, for example, mandates that machines are calibrated using a .05, .10, and .15 solution to ensure that the machine accurately measures the correct range of likely breath tests.  Think of it in terms of a thermometer.  We know that a basic household thermometer used to measure one's temperature is accurate for a range of basically 90 degrees to 110 degrees because it is supposed to measure body temperature.  We know this because the company that puts out the thermometer tests it at different temperatures, not just 98.6 degrees.  If it was only tested at 98.6, there would be no way to determine the accuracy of its temperature readings at 94 or 105 degrees.  Breath tests, like all other scientific measuring devices, are similar in this regard.

In short, a breath testing device that is calibrated at .10% only would be a good device at measuring the alcohol content of breath at .10% and that's all.  A device calibrated at .04, .08 AND .10 would be an accurate device for measuring that range of alcohol content.

Don't dismiss this as a simple legal technicality or a typo.  This was the law and its enforcement should be supported for scientific reasons.  I would argue that the law should be changed back or even better should use Pennsylvania's range to ensure that these devices that can send someone to jail for a long time or can otherwise be a permanent black mark on their record are as accurate as possible.  

 If you have been arrested and/or charged with a DUI/DWI in Branson, Nixa, Ozark, Springfield, Greene County, Chrisitan County, Taney County, Stone County, or anywhere in the surrounding area of Southwest Missouri, please schedule a free consultation today by calling Josh Garrett at (417) 221-4113 or by clicking "Contact Us" above.

UPDATE: Since this post was written a few years ago, the Missouri Supreme Court has weighed in and agreed with this analysis. Stiers v. Director of Revnenue, 477 SW 3d 611, MO 2016