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Accuracy of breath analysis machines in D.C. questioned as DWIs get overturned

By Clarence Williams and Martin Weil
Washington Post Staff Writer
Saturday, February 27, 2010; B04

District of Columbia officials said Friday that they are investigating the accuracy of breath analysis devices that provide key evidence in drunken driving cases, but the impact of the potential problems on convictions in such cases was not immediately clear.

"The Metropolitan Police Department has recently become aware of a potential problem with the accuracy of its alcohol intoxilyzer machines," a spokeswoman for D.C. Mayor Adrian M. Fenty said in a statement Friday night.

The police are "working closely" with the city's Office of the Attorney General "to immediately investigate this matter," said the statement from Mafara Hobson, Fenty's spokeswoman.

One defense attorney said Friday that in the past three weeks charges of driving while intoxicated were dropped in three of his cases. He said prosecutors told the court that police lacked confidence in the test results.

Lawyer Bryan Brown said prosecutors did not specify to him the nature of the problem. "We don't know what is wrong. It could be the machines, the operators or the solution used to calibrate the machines," he said.

The devices are used to measure the alcohol content of motorists' blood by analyzing their breath.

Challenges to the accuracy and significance of the breath-testing devices have long been a defense tactic in DWI cases across the country. Prosecutors have said that in many of the cases other evidence often exists.

D.C. attorney general's office prosecutes DWI cases in the city. Attorney General Peter J. Nickles said by e-mail Friday that he was out of town and would have no comment on the matter before Monday.

A calibration problem with many of the city's testing devices was discovered during a police department audit, according to WRC (Channel 4,) which brought the issue to light Friday in a news report.

Attributing the information to police, the news report said that at one time or another at least eight of the department's 10 Intoxilyzer devices were considered defective.

The specific nature of the defects and the period over which they reportedly existed were not immediately clear. But, according to the television station, the cases that could be affected date to October 2008.

Police officials could not be reached immediately for comment.

WRC quoted D.C. Police Chief Cathy L. Lanier as saying: "It's good that we caught it ourselves and pulled these machines immediately."

The city's statement said results of its investigation would be made public after the conclusion of the investigation by the police and the attorney general's office.

The mayor's statement said the devices in question "are not in use," and the possible impact of any inaccuracy was limited to certain DWI (Driving While Intoxicated) cases from "a specific time frame."

A Web site concerned with the defense against DWI charges said "it is critical" to contact "a lawyer that is familiar with the errors associated with breath testing."

Causes of error are "many indeed," the site said.

A Florida newspaper this week reported that a vigorous challenge to breath testing machines was underway in the Palm Beach area, with results being challenged in an estimated 400 cases.

Seven judges in the Palm Beach area were sorting through technical testimony about the machines' accuracy, the report said.

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