Archive for November 6th, 2019

Should Judges Be Concerned About Breath Testing Devices Accuracy?

posted by Judge_Burke @ 21:18 PM
November 6, 2019

There is a saying that I am fond of: “Every once in a while we should hang a question mark after the things we take for granted.” Forensic science is not only important in DWI cases but in all criminal cases. A major cause of wrongful convictions is forensic science was wrongfully applied. That is among the reasons the Justice Speakers Institute and the National Judicial College published the Judge’s Science Bench Book.  See http://justicespeakersinstitute.com/science-bench-book/.  Perhaps the most frequently used forensic tools in criminal law are breath tests given to suspected drunk drivers. We mostly assume the machines are accurate, however The New York Times has a piece on breath testing devices that may challenge our thinking, including frightening allegations against some of those responsible for guaranteeing accurate testing and a survey of recent legal challenges.

The New York Times piece is  quite interesting. I hope others read it. It is easy to be dismissive about the claims that defense counsel make, or to develop such an ingrained sense of cynicism that we don’t readily put the question mark after things we, for so long, take for granted. So, whether you agree with the conclusions of the article may not be as important as being far more open minded when hearing challenges to the technology that we employ in DWI  cases.

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