Is the Breathalyzer Reliable in SC?

by | Jul 26, 2019 | DUI |

Is the breathalyzer reliable in SC?

Law enforcement says, “Of course it is!” And yet, experts disagree. Law enforcement says, “Take our word for it,” as they refuse to release the software that runs the Datamaster. Why refuse to release the software if it would show the Datamaster is reliable?

Most likely because the evidence would show that the machine is unreliable, as experts have been saying for years.

If you’ve been charged with DUI, DUAC, or a DUI-related offense in Myrtle Beach, SC, call the DUI defense lawyers at Coastal Law now. Do not delay as the state is building their case against you…

Is the Breathalyzer Reliable in SC? 

The breathalyzer test is not reliable, including the Datamaster test that is used in SC. The many factors that make the test unreliable include:

  • How long you blow into the machine;
  • Whether you held your breath before blowing;
  • Whether any foreign objects were in your mouth (gum, dentures, piercings);
  • The temperature of your breath (the machine assumes your breath is exactly 92.3 degrees);
  • What you ate before taking the test;
  • What you drank before taking the test;
  • What medications you are taking;
  • Whether you have certain medical conditions;
  • The expiration date of the simulator solution;
  • The temperature of the simulator solution;
  • Radio interference with the machine;
  • Intentional tampering by law enforcement officers; and
  • Errors in the software that controls the machine.

So, why does South Carolina continue to use it? Why does law enforcement dogmatically insist that the machine is reliable while refusing to provide evidence?

It’s because it is the best we’ve got.

Rather than being honest with the public about the flaws in the machine, which would most likely result in the development of more accurate methods for testing blood alcohol, law enforcement will continue to use the Datamaster in our state under their contracts with the machine’s manufacturer.

SC will also continue to deny access to the software that controls the machine, citing their contracts with the machine’s manufacturer, until the courts force them to disclose the information…

Minnesota Litigation on the Reliability of the Datamaster

Four judges in three Minnesota counties have ordered Intoximeter, Inc., the manufacturer of the Datamaster machines, to provide the Datamaster’s software to DUI defense attorneys for independent testing.

Is the breathalyzer reliable in Minnesota? It’s the same machine we use in SC

Multiple experts have testified that the machines give “false-positive” results and round up the results rather than rounding them down:

[A Minnesota defense attorney] told KSTP he’s found the DataMaster DMT, on some occasions, will give what he called “false-positive” results and will sometimes round breath tests up rather than down as it is supposed to do.

“It can report a result higher than it actually is,” said [the attorney]. “And, in more and more cases we are finding these results are not valid, reliable or accurate.”

[The attorney]said the false positives are created by the DataMaster when it fails to properly “kick out interceptors” which are supposed to be rejected by the machine which then leads to a reading of the driver’s breath alcohol rather than blood alcohol level.

What’s the difference between “breath alcohol” and “blood alcohol?”

What Do “Breath Alcohol Content” and “Blood Alcohol Content” Mean?

No one is charged or convicted based on their “breath alcohol content,” although the Datamaster is designed to measure the amount of alcohol present on the breath. DUI laws are based on a person’s “blood alcohol content,” or BAC.

If there is no interference and all of the variables are perfect, the machine measures the amount of alcohol on your breath, not in your blood. The machine then multiplies the breath-alcohol content by 2100 to reach the predicted blood alcohol content – an arbitrary figure that can result in exponentially inflated BAC results when the breath alcohol content is off by even a small amount…

The machine also does not take into account that a person’s actual conversion rate (breath alcohol content to blood alcohol content) can vary from 1:1800 to 1:2500 based on their height, weight, gender, and other factors.

Law Enforcement Says the Breathalyzer is Reliable

One forensic expert who has testified in more than 150 DUI cases insists the machine is not accurate:

If the test results are being inflated, or false positives are not being adequately identified, then you got a situation where the breath testing is being performed in a substandard manner and that’s not reliable forensic testing in any way, shape, or form…

[The expert] said the issue is very significant and needs resolution because, based on his review of the evidence, the DataMaster’s questionable readings are leading to charges and DUI convictions which are suspect.

“Based on any of this evidence, people in Minnesota have been wrongly convicted…”

What is law enforcement’s response?

The allegations… are False. The devices provide accurate results, and we welcome the opportunity to address any challenges in court. The BCA’s internationally accredited calibration laboratory provides evidential breath test instruments to over 200 law enforcement agencies throughout the state. The results provided by those instruments are reliable and admissible.

The lab is internationally accredited. The machines are calibrated. There are no issues, and there definitely are no wrongful convictions.

Is the Breathalyzer Reliable? Yes, but You Can’t See the Software

Is the breathalyzer reliable? Law enforcement says it is. How do we know it is reliable? Well, because law enforcement says it is.

Police and prosecutors would have you believe that this is a magical “black box” – you push a button and it provides an accurate number for a person’s blood alcohol content. Yet, when you try to confirm that the machine is working as intended, police and prosecutors throw up roadblocks and refuse to turn over the software.

“We don’t have the software.” “You are not entitled to see the software.” “We are contractually obligated to not show you the software.” “The software is a ‘trade secret’ and that is more important than your right to test the evidence in your case.”

How can an attorney test the Datamaster software that was used in your breath test?

  1. You must pay for a forensic expert that can testify at your hearing to compel the production of the software;
  2. You must pay the forensic expert to conduct the tests and to testify at your trial, if necessary;
  3. Your attorney may need to subpoena the manufacturer of the Datamaster to force them to produce the source code for their machine;
  4. Your attorney must convince a judge that you have the right to inspect and test the software; and
  5. If the judge refuses and you are convicted, you will need to pay the costs of an appeal to SC’s appellate courts.

Obtaining the software for the Datamaster and conducting independent testing is not a valid strategy in most cases – it requires time, money, and a DUI defense lawyer who is willing to take on both the government and the corporation that manufactures the machines.

Even if you have the funds available to take on this fight, it may not be worthwhile to you if you are looking at a potential dismissal or reduction to another traffic violation on other grounds. It is, however, a critical battle in the fight to prevent wrongful DUI convictions.

Independent testing of the Datamaster software might 1) demonstrate the errors that are caused by the software, and 2) motivate the government to develop more accurate methods of determining a person’s blood alcohol content.

SC DUI Defense Lawyers in Myrtle Beach

If you are given a breathalyzer test after a DUI stop in SC, the results may not be as accurate as the police and prosecutors would have you believe.

Your DUI defense attorney at Coastal Law can request a jury trial in your case, get the state’s evidence from the prosecutor, subpoena evidence from government agencies or the Datamaster’s manufacturer, review the videos, breath test results, and records for the machine that you were tested on, and retain breathalyzer or other experts when needed.

Call Coastal Law now to schedule a free case consultation by calling (843) 488-5000 or by contacting us through our website.

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1104 North Oak Street
Myrtle Beach, SC 29577

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Conway, SC 29526

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Charleston, SC 29401

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1201 Main Street, Suite 1913
Columbia, SC 29201

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