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SFPD Breathalyzer Mistake Puts Hundreds of DUI Convictions In Doubt

Soulskill posted more than 2 years ago | from the calibration-is-key dept.

Crime 498

Mr. Shotgun writes "According to CBS, 'Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday. For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment. Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.' Apparently this has happened before."

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Good (1)

eternaldoctorwho (2563923) | more than 2 years ago | (#39302313)

I want a whole bunch of doubt to be thrown on the judicial system. It's had such a great track record so far, after all.

Re:Good (4, Insightful)

capnchicken (664317) | more than 2 years ago | (#39302341)

Especially things involving Drunk Driving which are routinely based on emotional appeals rather than real evidence and metrics.

Re:Good (4, Insightful)

Karl Cocknozzle (514413) | more than 2 years ago | (#39302383)

Perhaps this will also lead to revelations about the myths of "drugged" driving as well. Reality: Just because you can test somebody's urine and find XYZ doesn't necessarily follow that they're under the influence of XYZ. Technically a blood test can reveal alcohol consumption up to 14 days later, but no serious person above the age of 5 really believes that means that you're drunk for 14 days...

Re:Good (1)

box4831 (1126771) | more than 2 years ago | (#39302475)

but no serious person above the age of 5 really believes that means that you're drunk for 14 days...

*hic* oh shi- I'm not supposed to b-*hic* be durnk that long? shcuse me I gots to call my doctor.. *hic*

Re:Good (4, Interesting)

Richard_at_work (517087) | more than 2 years ago | (#39302821)

Which is why the quantity matters.

Also, is there no second test done by a different method? In the UK you can blow positive by the roadside, but a second test by entirely different methods is done back at the police station on a non-portable unit, and then a blood test an be requested.

Re:Good (2, Insightful)

Anonymous Coward | more than 2 years ago | (#39302403)

The judicial system worked in this case, they threw out the doubtful convictions. It's the executive branch, the one's tasks with law enforcement, that are having the doubt cast upon them.

Re:Good (2, Insightful)

cayenne8 (626475) | more than 2 years ago | (#39302735)

Oh No!!!

I'll be officials are scared shitless they'll have to refund all that fine money they took in from these folks!!!

Geez, this could be a significant loss of revenue!!!

At least, that's likely the first thoughts going through their heads....

Re:Good (0)

krept (697623) | more than 2 years ago | (#39302737)

Not going to waste mod points on AC.

Request a blood test (0)

Anonymous Coward | more than 2 years ago | (#39302345)

We already know these things are horribly unreliable. If you're pulled over and asked to take a breathalyzer test, request a blood test. Breathalyzers are not dependable. Some types fail if you're diabetic. They're all sensitive to the different percentages of alcohol at different depths in your lungs. And obviously poor calibration is extremely common. You can't trust them to be accurate, and an inaccurate blood alcohol reading is something that can ruin your life.

Re:Request a blood test (2)

SQLGuru (980662) | more than 2 years ago | (#39302427)

Unless, of course, you're guilty and looking for plausible deniability......

But then, if you aren't guilty, take the breath test and if you fail, ask for the blood test.......otherwise, you have to take a ride to the station for the blood test, and all of that other inconvenience.

Re:Request a blood test (5, Informative)

Registered Coward v2 (447531) | more than 2 years ago | (#39302527)

Unless, of course, you're guilty and looking for plausible deniability......

But then, if you aren't guilty, take the breath test and if you fail, ask for the blood test.......otherwise, you have to take a ride to the station for the blood test, and all of that other inconvenience.

If you fail you'll get a ride to the station anyway. The advisability of refusing a test aside; it's still not that hard to get convicted of DUI based on other evidence. I served on a DUI jury, and all a breath test would have done is shorten the time it took to reach a verdict from 2 days to probably 2 hours. We took our job seriously and debated each piece of evidence, so not having a breath gets probably helps a case but it is not a slam dunk acquittal by a long shot.

Re:Request a blood test (1)

Z00L00K (682162) | more than 2 years ago | (#39302775)

Refusing the test may raise suspicion by the cop that you have things that aren't in order.

And if it's positive then go for the blood test.

The breath analyzers are better today than they were before, but there's still room for inaccuracy. However if you know you are sober you shouldn't have any problem taking the test. The accuracy problems are usually when it's the question of the legal limit or not. And here the legal limit is 0.02%.

Re:Request a blood test (4, Informative)

cayenne8 (626475) | more than 2 years ago | (#39302793)

Yep...I've asked lawyer friends...

If I get pulled over (and this does vary by state)...and I know I'm toast, on his advice, I won't say a thing, won't answer a question, I will NOT take any roadside tests (that's just letting them gather evidence against you on camera) and refuse breath or blood tests.

I'll politely hold my hands out for them to put the cuffs on me, and quietly go with them...and call my atty when I get to the police station.

The main thing to do...is NOT give them any evidence....or as little as possible.

In many states, at worst on first offense, refusing any tests might get you license yanked for 6mos up to a year, but with good atty, you can get temp license to drive to/from work and for food, etc.

A PITA, of course, but much better than getting a DWI on your record...which can then keep you out of jobs, kills your insurance rates...and cost $$$$.

Ever since they lowered the BAC to the ridiculously low 0.08....a grown man, having 2 drinks with a meal, can be dangerously close to the so called legal limit.

So, it pays to know what to do....the govt these days seem to be into any kind of traffic stop mostly for revenue these days...safety is usually second place.

Having worked with officers in that area before... (4, Insightful)

grasshoppa (657393) | more than 2 years ago | (#39302391)

...this doesn't surprise me in the least. You have a few that respect and understand technology, and all it can do for the dept, but most resent it and try to deal with it and little as possible.

This won't even change anything, really.

Re:Having worked with officers in that area before (2)

na1led (1030470) | more than 2 years ago | (#39302469)

I hope they get their ASSES sued! If it happen to me, and I had to pay fines, spend time in jail, lose my license, my job, reputation, etc. etc., I'd get the best lawyer and SUE them!

Re:Having worked with officers in that area before (0)

Anonymous Coward | more than 2 years ago | (#39302549)

I hope they get their ASSES sued!

Yeah! That'd be SO much better than if they get their LEFT ULNAS sued!

Re:Having worked with officers in that area before (1)

cpu6502 (1960974) | more than 2 years ago | (#39302625)

Thanks.

That would explain why a cop claimed he measured me at 91, even though my cruise control had been set to 79 (plus four over the speed limit). His equipment was probably not calibrated and giving false readings.

I'm tempted to just throw the ticket in the trash. I don't think a New Mexico cop is going to come after a guy living in Jersey (2000+ miles away),

Re:Having worked with officers in that area before (1)

Oswald McWeany (2428506) | more than 2 years ago | (#39302715)

I dunno. That specific cop may not come looking for you- but they could put a warrant out for you that a Jersey cop would respect.

It's probably not worth the escalation that not showing up to court could bring to you.

Re:Having worked with officers in that area before (1)

Sosetta (702368) | more than 2 years ago | (#39302729)

A judge in New Mexico can have your Jersey license suspended. They undoubtedly will, and you'll find out about it in a few years when you get pulled over for something really minor and end up going to jail for driving with a suspended license.

Re:Having worked with officers in that area before (1)

cpu6502 (1960974) | more than 2 years ago | (#39302809)

I don't see how a New Mexican judge can have any power outside of his own state. What you propose is equvalent to a Spanish judge suspending a Polish guy's license (which cannot happen even though both are part of the EU). The judge's authority ends at the border.

Now maybe if the Jersey government has an agreement to honor traffic violations, and extradites me to New Mexico, but that seems very unlikely. Especially since they are separated by over 2000 miles.

Normally I would fight it in court but again, I'm not going 2000+ miles just to fight a ticket. Asshole cops. They can lie (claim I was doing 91 when I was only doing 79) and get away with it.

Re:Having worked with officers in that area before (5, Informative)

wwphx (225607) | more than 2 years ago | (#39302657)

Unbelievable. I worked for Phoenix Police for nine years doing computer work. We had implemented an optical document management system when DUI attorneys started subpoenaing Intoxilyzer maintenance records as SOP when it came to cases, so we started scanning all calibration and maintenance records as part of our SOP. It also made it ridiculously easy to fulfill the subpoena. Our Intoxilyzers were calibrated by the crime lab, so it was actual chemists with a vested interest in accuracy, so it was done right. And this was back in the 90's!

Just unbelievable that SFPD could be so stupid. There's no excuse for this, whoever is in charge of that calibration really needs to get their heads handed to them. And so does the prosecutor's office for not checking this.

Re:Having worked with officers in that area before (1)

19thNervousBreakdown (768619) | more than 2 years ago | (#39302745)

Prosecutor's office? How about the defense attorneys! Holy crap I'd be pissed off if my lawyer let something like this slide.

Re:Having worked with officers in that area before (5, Insightful)

ScentCone (795499) | more than 2 years ago | (#39302837)

Holy crap I'd be pissed off if my lawyer let something like this slide.

I think you're missing the point. The defense attorney's would have asked for proof that the devices had been calibrated. And the falsely filled-out paperwork would have been turned over, showing just that. You're saying that the defense attorney's should have asked for proof that the documentation wasn't fraudulent. Which would have been ... what? Paperwork from a non-existing third party auditor? That's why the cases are in question.

Mind you, most cops know exactly when they're dealing with a drunk. And the drunks know when they're drunk. I would hope that this blunder only impacts very questionable/marginal cases, and not those where the driver was obviously and aggregiously under the influence.

Re:Having worked with officers in that area before (5, Insightful)

cpu6502 (1960974) | more than 2 years ago | (#39302751)

Ya know what else doesn't get calibrated?

  The scanners run by the SA at airports. At any point of time there could be a mechanical failure and the machines start bombarding passengers with lethal (or cancer-causing) doses of X-rays and nobody would ever know, because the machines are not regularly tested (as is required in hospitals and doctors' offices). I don't think I will ever voluntarily step through one of those things.

There's a reason the European Union banned their use. I wish OUR union would wake-up and ban them as well (but of course the CEO of the scanner company has bought the politicians that make those decisions).

Re:Having worked with officers in that area before (0)

Sez Zero (586611) | more than 2 years ago | (#39302769)

You have a few that respect and understand technology, and all it can do for the dept, but most resent it and try to deal with it and little as possible.

I can't wait until Ford sends them some USB sticks [slashdot.org] to update their police cruisers. Criminals will be able to get away on foot.

Will officers face sanctions? (5, Insightful)

hawguy (1600213) | more than 2 years ago | (#39302393)

Will officers face sanctions for falsifying records?

The DA said:

Gascon said there did not appear to be any malicious intent behind the police officers’ actions. He said the coordinators were apparently just too lazy to perform the test required every 10 days.

Can I use that excuse when I get pulled over for rolling through a stop sign? "But I was just too lazy to stop, officer! Surely you can understand that!"

Re:Will officers face sanctions? (5, Insightful)

burningcpu (1234256) | more than 2 years ago | (#39302551)

They didn't just not do the test. They filled out the paperwork to made it appear that the instrument had been calibrated. That is fraud.

Re:Will officers face sanctions? (5, Insightful)

Jason Levine (196982) | more than 2 years ago | (#39302627)

I agree. A mistake would have been "I thought you pushed the button until it beeped once. I didn't realize it needed to beep twice to be properly calibrated." Fraud is "I don't feel like putting effort into this. I'll just mark down that I did it. Who really cares?"

Re:Will officers face sanctions? (5, Interesting)

TheRaven64 (641858) | more than 2 years ago | (#39302753)

Since this is a legal document which is going to be used in court proceedings, I would say that conspiracy to pervert the course of justice would be a better charge...

Re:Will officers face sanctions? (1)

bipbop (1144919) | more than 2 years ago | (#39302557)

Seriously, I don't understand how "too lazy not to cause false arrest and conviction" falls on the right side of the "malicious intent" line.

Re:Will officers face sanctions? (4, Insightful)

evanbd (210358) | more than 2 years ago | (#39302563)

On a related note, I'm curious what part of this is a "mistake". I think a better headline would be something like "SFPD Breathalyzer Fraud Puts Hundreds of DUI Convictions In Doubt".

Re:Will officers face sanctions? (1)

myth24601 (893486) | more than 2 years ago | (#39302571)

This is an example of a DA protecting his guys. They should face an obstruction or purjury charge of some kind for every case that is impacted.

Re:Will officers face sanctions? (1)

Lord Grey (463613) | more than 2 years ago | (#39302591)

Can I use that excuse when I get pulled over for rolling through a stop sign? "But I was just too lazy to stop, officer! Surely you can understand that!"

No, your excuse should be, "I had no malicious intent." This is apparently different from, "It was an accident."

Willfully performing an action, or willfully not performing an action you are supposed to perform, with a smile and a wave translates into a Stay Out Of Jail And Retain Your Job card.

I wish I would have known that when I was a teenager.

Re:Will officers face sanctions? (0)

Anonymous Coward | more than 2 years ago | (#39302693)

Sanctions? That doesn't begin to cover the costs of the court cases, both ones in the past that may have been founded on bogus instrumentation, and the future ones that are going to begin on that basis and continue for years to come.

This is not simple "laziness", this is dereliction of duty. If it's your job to calibrate the breathalyzer equipment and you don't do it, then you aren't doing your job and should be FIRED, especially if they are falsifying records to hide the fact. After being fired you should be prosecuted for fraud.

Software liability, and TDD (1)

mounthood (993037) | more than 2 years ago | (#39302823)

Next time someone starts talking about holding programmers legally liable, remember how police officers ruined peoples lives because they were "just too lazy to perform the test."

Also, we all knew that Test Driven Development was going to cause crashes.

Fucking Pigs (-1)

Anonymous Coward | more than 2 years ago | (#39302399)

God I hate cops.

The Numbers Don't Lie! (1)

na1led (1030470) | more than 2 years ago | (#39302405)

"Err, Opps! there is an error here. Let me check that again"

Re:The Numbers Don't Lie! (1)

ackthpt (218170) | more than 2 years ago | (#39302431)

"Err, Opps! there is an error here. Let me check that again"

Suggestion: Use the thing that they breath into, not the RADAR gun.

I take exception to the term "mistake" (5, Interesting)

Karl Cocknozzle (514413) | more than 2 years ago | (#39302409)

This is fraud: A police officer accepted a paycheck for work and services he did not perform. That's fraud, and the officer should be relieved of duty and terminated from employment. Cops aren't above the law, or accountability, and it sounds like whoever fraudulently filled out the forms using the baseline measurements engaged in fraud.

Re:I take exception to the term "mistake" (4, Funny)

Ogive17 (691899) | more than 2 years ago | (#39302449)

Are you committing fraud by reading/posting on /. from work?

Re:I take exception to the term "mistake" (0)

Anonymous Coward | more than 2 years ago | (#39302513)

Not if you also deliver on the services you are being paid to deliver.

Re:I take exception to the term "mistake" (1)

hawguy (1600213) | more than 2 years ago | (#39302529)

Are you committing fraud by reading/posting on /. from work?

Uhh...depending on which time zone he's in, it might be his lunch hour. Many employers allow personal use of internet at work.

Even if it's normal working hours, that doesn't mean that he's not on an employer approved break. And if he's salaried, as long as he's putting in the 40 hours he's getting paid for, I'm not sure how he's defrauding his employer. In my timezone it's "normal" working hours, but since I was at the office until 1am last night working on an upgrade, I'm still at home and won't make it to the office until noon, if at all. Oh, and I've already put in 50 hours this week.

Re:I take exception to the term "mistake" (4, Funny)

Jah-Wren Ryel (80510) | more than 2 years ago | (#39302587)

Are you committing fraud by reading/posting on /. from work?

That's like asking if a cop is committing fraud by eating a donut.

Re:I take exception to the term "mistake" (-1, Flamebait)

Anonymous Coward | more than 2 years ago | (#39302691)

You shouldn't think you're clever. You're actually just an asshole.

WTF?!?! (0)

Anonymous Coward | more than 2 years ago | (#39302723)

Are you committing fraud by reading/posting on /. from work?

We're talking about police here. People who are empowered to take away our freedom and put us in jail. And we're talking about drunk driving where, no thanks to MADD, you are guilty until proven innocent. So, even if you were completely SOBER when these fraudulent Breathalyzers were used, you would have had to spend time in jail, most likely lost your job, spent tens of thousands of dollars on legal fees, and in the case of these poor bastards, have a wrongful criminal record.

And by posting on Slashdot during work hours is comparable to that how then ?!

Re:I take exception to the term "mistake" (4, Insightful)

nedlohs (1335013) | more than 2 years ago | (#39302741)

That would depend on whether you are "on the clock" at work and what you and your employer agreed to.

If you filled out a timesheet saying you spend that time doing something else then almost certainly yes. Which is the main difference in this actual case - the people involved documented that they did the work even though they didn't. That's where the fraud is.

Magnified by the fact that their fraud could send innocent people to jail. Or if you are a MADD supporter that their fraud could let drunk divers off the hook (calibration errors work both ways after all).

But they're cops, if lying on paperwork got them in trouble there wouldn't be any left.

Re:I take exception to the term "mistake" (2)

geekoid (135745) | more than 2 years ago | (#39302763)

Not if my employers are aware of that fact.

Re:I take exception to the term "mistake" (1)

Frosty Piss (770223) | more than 2 years ago | (#39302539)

Cops aren't above the law, or accountability...

I'm sorry, where have you been... forever? There is very strong evidence that in fact cops ARE above the law and accountability.

The thing to understand is that most cops are bullies, being a cop is the ultimate license to bully without repercussions.

Re:I take exception to the term "mistake" (1)

oodaloop (1229816) | more than 2 years ago | (#39302575)

How about, instead of the zero tolerance position you suggest, they just counsel the officers on why calibrating is important and have something check the paperwork? Do you think you should be fired the first time someone finds out you did something wrong?

Re:I take exception to the term "mistake" (2)

dbet (1607261) | more than 2 years ago | (#39302707)

Maybe if this were the only thing they were doing wrong, but cops in the U.S. routinely get away with anything and everything, and yes, if you're intentionally falsifying data to put people in jail you should be fucking fired, possibly jailed - with the people you put there.

Re:I take exception to the term "mistake" (0)

Anonymous Coward | more than 2 years ago | (#39302835)

If the action caused hundreds if not thousands of convictions to be overturned, and might even result in lawsuits. Yes, you have failed miserably, and should be fired. In fact if the DA wants to save face, he should press charges against the officers for fraud.

Re:I take exception to the term "mistake" (1)

gstoddart (321705) | more than 2 years ago | (#39302675)

This is fraud: A police officer accepted a paycheck for work and services he did not perform. That's fraud, and the officer should be relieved of duty and terminated from employment.

Not just that, it could effectively be perjury.

I'm sure that somewhere in that paperwork it basically says "I swear that these test results are accurate according to the prescribed tests".

At a certain point, sworn, legal testimony hinges on those tests. In this case, that was a bold-faced lie.

I should think a good number of defense lawyers are basically preparing a motion to overturn or whatever else they can think of on the basis that there is no credible evidence anymore.

Though, somehow I'm skeptical that this will be prosecuted like it ought to be.

Re:I take exception to the term "mistake" (2)

Hatta (162192) | more than 2 years ago | (#39302697)

This is worse than fraud. When you're defrauded, you're only out dollars. Being falsely accused of a DUI can ruin a person's life.

Re:I take exception to the term "mistake" (0)

Anonymous Coward | more than 2 years ago | (#39302759)

[[Cops aren't above the law, or accountability ...]]

Here, let me fix that for you: "Cops shouldn't be above the law, or accountability"

Re:I take exception to the term "mistake" (1)

John Jorsett (171560) | more than 2 years ago | (#39302789)

More than fraud, it's evidence tampering and knowingly submitting false evidence. I wouldn't be surprised to see the wrongly-convicted sue the city over this. The DA should also be prosecuting the cops who falsified the paperwork.

Technology in the hands of Neophytes (1)

ackthpt (218170) | more than 2 years ago | (#39302415)

Gosh. That couldn't happen before *cough* where I work *cough*.

Who is Dallas Darling? (0)

Anonymous Coward | more than 2 years ago | (#39302417)

His real name?

Breathalyzer "mistake"? How about FRAUD? (4, Interesting)

Ellis D. Tripp (755736) | more than 2 years ago | (#39302419)

A mistake would have been using the wrong calibration procedure or something. Deliberately NOT PERFORMING the required calibration and falsifying the report forms is not a "mistake", it is outright FRAUD, and the pig or pigs responsible need to be held responsible.

Of course, that ain't gonna happen here in the United Police States of Amerika...

Re:Breathalyzer "mistake"? How about FRAUD? (-1)

ackthpt (218170) | more than 2 years ago | (#39302503)

A mistake would have been using the wrong calibration procedure or something. Deliberately NOT PERFORMING the required calibration and falsifying the report forms is not a "mistake", it is outright FRAUD, and the pig or pigs responsible need to be held responsible.

Of course, that ain't gonna happen here in the United Police States of Amerika...

Well done. Went right over the edge without help from any other sources. Care to cast aspersions on anyone else while you are here?

They didn't follow procedure, that's a command issue - reprimand those in charge, correct the procedure, move forward.

I hope nothing like that happens where you work, I don't think you could handle it.

Re:Breathalyzer "mistake"? How about FRAUD? (1)

oneiros27 (46144) | more than 2 years ago | (#39302665)

If something like this happened at my work, they would get fired for negligence and possibly charged with fraud for falsifying reports and billing for work that they weren't doing.

Of course, I also work at a place where things like that could (and have) gotten people killed.

Re:Breathalyzer "mistake"? How about FRAUD? (0)

Anonymous Coward | more than 2 years ago | (#39302685)

They didn't follow procedure...

Bull. Fucking. Shit. They falsified the tests, that goes so far beyond not following procedure that it's outrageous you would try to slip that excuse into the conversation. And no, the grandparent did not go over the edge--the particular officers deserve no respect and no special treatment.

Re:Breathalyzer "mistake"? How about FRAUD? (1)

19thNervousBreakdown (768619) | more than 2 years ago | (#39302771)

Yeah, no big deal. So some people were wrongly convicted of a life-disrupting and extremely socially unacceptable crime? Big whoop, get over it ya cry-babies.

Re:Breathalyzer "mistake"? How about FRAUD? (4, Insightful)

Jah-Wren Ryel (80510) | more than 2 years ago | (#39302813)

They didn't follow procedure, that's a command issue - reprimand those in charge, correct the procedure, move forward.

I hope nothing like that happens where you work, I don't think you could handle it.

You accuse him of going over the edge, but your response trivializes the issue.

A police officer's job is not the same as that of some random poster on slashdot. When not following procedure is enough to ruin an innocent person's life then a "reprimand" is a not sufficient response. If anything, that sort of lax attitude about such casual misuse of power is what leads people like the GP to use the phrase "United Police States of America."

Re:Breathalyzer "mistake"? How about FRAUD? (2)

schlachter (862210) | more than 2 years ago | (#39302603)

They need to go to jail for this. It's down right criminal. Hundreds of people may have gone to jail unnecessarily because of the crime these officers committed.

Re:Breathalyzer "mistake"? How about FRAUD? (0)

Anonymous Coward | more than 2 years ago | (#39302761)

I suspect that many of those people would have gone to jail anyway if the officers had calibrated the analyzers.

Re:Breathalyzer "mistake"? How about FRAUD? (1)

cez (539085) | more than 2 years ago | (#39302817)

Wow, I suspect that most wouldn't have gone to jail! See how easy suspecting shit pulled out of your ass is? Stay tuned, now I will suspect what will happen to these cops: Nothing except a paid leave as their blue buddies "investigate" the issue then laugh about it over beers at the local brothel.

Re:Breathalyzer "mistake"? How about FRAUD? (3, Insightful)

geekoid (135745) | more than 2 years ago | (#39302791)

No. They need to loose their jobs. The city needs to be sued, and everyone convicted should get recompense for the monies the spent, impacts on their jobs, and reputation.

I don't want to pay to put someone in jail when they aren't actual a dangerous threat to society.

This goes for many people who are in jail.

Oblig: FTP (4, Informative)

stevegee58 (1179505) | more than 2 years ago | (#39302423)

Even though you'll most likely have your driver's license suspended if you refuse a breathalyzer, it's best to refuse it anyway if you're drunk.
Once you refuse the breathalyzer it gets complicated for the police and the clock starts ticking to get that blood test done in a timely fashion.

Re:Oblig: FTP (0)

number17 (952777) | more than 2 years ago | (#39302619)

Not where I live:
Other Ways to Loose Your License [gov.on.ca]
"If you fail or refuse to provide a breath sample or to perform the physical co-ordination tests, you will be charged under the Criminal Code.
If you cannot give a breath sample or it is impracticable to obtain a sample of breath, the police officer can require you to provide a blood sample instead. "

Re:Oblig: FTP (4, Insightful)

Pope (17780) | more than 2 years ago | (#39302645)

Or just not drive drunk in the first place.

Re:Oblig: FTP (0)

Anonymous Coward | more than 2 years ago | (#39302705)

In PA, refusing a breathalyzer means that you will lose your license for a year.

Also in PA, breathalyzers are not admissible to show DUI. So the cops have to do a blood test anyway. Refusing a breathalyzer won't do anything for you except ensuring you lose your license for a year.

Check your local laws. These things are not as cut and dried as you think.

Cop poll (0, Flamebait)

Anonymous Coward | more than 2 years ago | (#39302441)

Do you want to

a) Test these breathalysers
b) Have a doughnut

Yeah, I thought so.

Re:Cop poll (0)

Anonymous Coward | more than 2 years ago | (#39302547)

a) Test these breathalysers

I personally volunteer to test all the breathalyzers!
Bartender, one Bourbon, one Scotch and one Beer

"Mistake"? (1)

Oswald (235719) | more than 2 years ago | (#39302443)

That's not a mistake. That's negligence and dereliction of duty.

Cops are always telling us the shit they do is about our safety. So this must be about not giving a damn if we're safe. Fire 'em all.

Shocked, shocked I tell you (5, Funny)

gelfling (6534) | more than 2 years ago | (#39302445)

That a police department would use questionable tools and tactics to secure large numbers of convictions that also result in large fines.

seeee, izzzz told youuu i waz sob er (3, Funny)

elrous0 (869638) | more than 2 years ago | (#39302451)

take THAT offfficeer i-know-everrything

Calibration? What's that? (2)

talexb (223672) | more than 2 years ago | (#39302455)

What idiots. Any time you use a piece of scientific equipment regularly, you have to be sure you're calibrating it. Even better if you're checking your calibrations multiple different ways.

malicious intent / laziness / fraud (0)

Anonymous Coward | more than 2 years ago | (#39302471)

I love this part:
"Gascon said there did not appear to be any malicious intent behind the police officers’ actions. He said the coordinators were apparently just too lazy to perform the test required every 10 days."

No malicious intent? Lazy? Really?
Public Official acting in capacity related to public safety + laziness = malicious.

At the very least it was fraud and therefore should be investigated accordingly and if sufficient evidence is found, prosecuted to the full extent of the law.

Re:malicious intent / laziness / fraud (1)

oodaloop (1229816) | more than 2 years ago | (#39302519)

Official acting in capacity related to public safety + laziness = malicious

Uh, what? There's something wrong with that equation. If a public official was too lazy to change his password, does that mean he had malicious intent to bring down his city's servers? No. Just means he was lazy. Charge the officers with something appropriate. Write them up for not doing their job properly, counsel them on how to calibrate and why it's important, and check the paperwork.

Re:malicious intent / laziness / fraud (3, Insightful)

the_fat_kid (1094399) | more than 2 years ago | (#39302677)

No. Fire them. File charges of official misconduct. Take their pensions. Ruin their lives any way you can.
They did not "forget" to do some thing. They deliberately did something WRONG and tried to hide it.
The "to lazy to change his password" equation doesn't fit. More like he changed his password to "password" told every one and had someone else punch him in and out for work.
Counsel them on how to pick up trash and buy them matching D.O.C. jumpsuits.

--
Being smug just makes you less informed than some one who watches TV.

Re:malicious intent / laziness / fraud (0)

Anonymous Coward | more than 2 years ago | (#39302739)

I'm starting to differentiate the concepts here: malicious vs. malicious with intent. So these guys were malicious without wanting to be. They wanted to be good guys.

Re:malicious intent / laziness / fraud (1)

PPH (736903) | more than 2 years ago | (#39302811)

Professionals (in many fields) are often held to a higher standard of conduct than the general public. So for what you or I might receive a simple reprimand, a professional should not get off so lightly.

Or, if the higher standard of a professional doesn't apply, then the next time I get a traffic ticket (based on some cop's judgment) and I fight it in court, the judge should not be able to consider that cop's testimony as being from a 'professional' and given more weight than my own. You can't have it both ways.

Password example: What penalties you or I should suffer for screwing up password security (as average members of the public) should suffer will be far less than a bank employee, who is entrusted with the security of a large number of accounts.

Calibration vs Test? Incompetent vs Unethical? (3, Insightful)

rwv (1636355) | more than 2 years ago | (#39302473)

IMHO, testing ought to be done by the vendor and calibration ought to be done by cognizant, technical individuals who have a minor amount of ethics. For a test person to fill in "sample data" is evidence that (a) these things don't work, or (b) the test person was either incompetent or unethical (and neither of these is acceptable in an industry related to the security of the public like law enforcement).

"there did not appear to be any malicious intent" (1)

techsimian (2555762) | more than 2 years ago | (#39302495)

...but incompetence is okay? They should get fired. It's not like they made an honest mistake. It creates two issues, one, people under the limit might have been wrongfully convicted and two, people who were over the limit get to walk.

Not just breathalyzers (0)

Anonymous Coward | more than 2 years ago | (#39302541)

The doppler radar guns used to catch speeders have to be properly calibrated and regularly serviced as well, and if you challenge the police to produce the documentation for that, chances are you will get off. In fact, some units require an accompanying electronic tuning fork to be used whenever the gun is moved in order to properly calibrate it; ie, whenever the police car moves. Most police don't carry these calibration devices (kept in a properly padded and thermally insulated case), so if that is the situation, they cannot accurately determine your speed. I've got out of tickets because of this in the past. If they were to object, then the resulting legal fallout would do to all the speeding tickets in the state what this is doing to DUI convictions in San Francisco. Finally, it used to be that the California Highway Patrol never used radar because of these issues. They had calibrated speedometers instead, so if they gave you a ticket for going 20mph over the limit, you WERE going 20mph over the limit! I don't know about today.

Important Questions (0)

Anonymous Coward | more than 2 years ago | (#39302561)

The important question here is: Does this invalidate the Mythbusters "Beat the breath tester" result of BUSTED? http://en.wikipedia.org/wiki/MythBusters_(2003_season)#Beat_the_Breath_Test

Can you say: "Lasy and Stupid" (1)

richardkelleher (1184251) | more than 2 years ago | (#39302567)

Of all the idiotic things I have heard of police departments doing, this has got to be very close to the top. This is right up there with the Eugene cop who tazed a Chinese U of O student because the student didn't speak English!

in England... (0)

Anonymous Coward | more than 2 years ago | (#39302589)

...the calibration of devices for measuring car speed was a well-known leapfrog appeal.

I'm surprised it's taken so long for testing of police revenue generator technology to reach US courts. One would hope that, in law, a device has to be tested to a particular standard before it becomes a device suitable for measurement of some metric which may lead to a criminal offence. Otherwise it'd be trivial to argue reasonable doubt. What's wrong with your lawyers?

Re:in England... (1)

Sez Zero (586611) | more than 2 years ago | (#39302797)

What's wrong with your lawyers?

What's NOT wrong with our lawyers?

The big question (0)

Anonymous Coward | more than 2 years ago | (#39302597)

So... the big question

(Such a dream I have):

Will the officers in charge of testing be charged with:

- falsifying evidence
- forgery
- fraud
- willful violation of civil rights & breach of 42 USC 1983, causing a loss of all rights to departmental representation and aid during trial
- conspiracy
- obstruction of justice
- likely perjury
- misprision / malfeasance in their failure to act or report each other
- RICO violations

Times however many instances of people convicted. I mean sure, it's throwing the book at them.. but that *IS* the DA's job. And in this case, their acts *by definition* have deprived thousands of justice. Even if most of them deserved to go to jail for DUI -- they were still entitled to a fair trial. Most serial killers only get to hurt a few tens of people. The world record, Luis Alfredo Garavito killed about 400. These guys probably hurt an order of magnitude more.

Consigned their pensions to damages, take their homes when they lose departmental representation and are sued civilly (along with the city of course), and then throw them in the brig for the rest of their lives. Not jail. They're servants of the public, and they destroyed that trust.

I mean ... they were just "lazy". It's not like any documentation was willfully forged.

Oh right... police & DAs are worse about omerta than the fucking mafia.

For extra fun -- I bet at least one person was forced to either lose their vehicle, or install ignition interlock -- the complete cost of which should be reimbursed with years of interest, damages for social costs, and since the convictions were obtained (and became a matter of public record under false pretense) -- not quite libel on the city's part (who could not have known any better) -- but individually.

emotional appeals? (1)

Anonymous Coward | more than 2 years ago | (#39302599)

I don't think you fully understand how a DUI works. A breathalyzer is not conviction-worthy evidence. It is merely a field test which leads to a U.A. or blood test which can provide accurate readings. Yes, sometimes users of other substances are caught up in this, and unlike with alcohol, we have limited ability in terms of establishing current intoxication with any other mind altering substance. I have heard people speak about dwi charges for marijuana that was smoked over 4-8 hours prior to driving. Point being, however, that this doesn't challenge the legitimacy of the charges. It challenges the competence of the officers, but that really isn't a surprise. Most cities require a short period of professional training (tech school) and a pulse. Testing a breathalyzer is simple and takes barely a moment. To save themselves several seconds, they B.S. it? I find this strange, and disappointing. We barely catch 10% of drunk drivers. I wonder if it is less being underfunded/staffed and more being lazy and incompetent.

Such a shame. (1)

jamesoutlaw (87295) | more than 2 years ago | (#39302605)

DUI is a serious crime and deserving of very serious penalties. It is a shame that numbskulls like these people can not properly follow procedures to make sure their equipment is functioning properly.

How about adding an auto-shutdown feature? (0)

Anonymous Coward | more than 2 years ago | (#39302617)

After 10 days hours, the unit would refuse to do any testing unless it were recalibrated. How would they recalibrate if the unit refuses to test? Make it so that it *would* work if plugged in. So, they have to bring it in to do the calibration. At least once every 10 days. There's probably some workaround for this, but hopefully it would be more effort that it's worth.

Re:How about adding an auto-shutdown feature? (2)

RussellSHarris (1385323) | more than 2 years ago | (#39302681)

How about something even simpler?

Breathalyzer devices create a paper trail. Every time a sample is run, the results are printed out. The cops need this paper trail if they want to use the result in court.

If they want to use the calibration sheet in court, they should need the same paper trail. The calibration sheet should have the paper printout stapled to it for each calibration sample they ran. If it doesn't, no calibration was done. Simple.

thousands? (0)

Anonymous Coward | more than 2 years ago | (#39302621)

Here in NY, a local town court hands out 15-20 DUI convictions a week, each totaling $900 in fines

No justice without profit

Misleading story is misleading (0)

Anonymous Coward | more than 2 years ago | (#39302637)

Everything about this story is MISLEADING.

Only with a careful reading do you find that they are talking about PRELIMINARY breath screening devices, i.e. portable ones the cops use on the street. A smart person NEVER blows into that one, as all it is for is give the cops a reason to haul you in, just like all of the other “field sobriety tests”. Doing any of those tests only give the cops the ability to say “well, he failed this, stumbled there, slurred words there” when you pass the breath test at the station and they don’t have the slam-dunk easy conviction they thought they would.

If you ever get pulled over for drunk driving, don’t do ANY of the field tests. No harm comes from not doing them and other than you will have to take your time to go to the station for the REAL breath test, which you’re going to get to do anyway.

Re:Misleading story is misleading (1)

RussellSHarris (1385323) | more than 2 years ago | (#39302731)

In most jurisdictions, refusing to take the field sobriety test is sufficient grounds for suspension of your license and a hefty fine, iirc.

It happens everywhere (0)

Anonymous Coward | more than 2 years ago | (#39302757)

In my own DUI experience, the calibration sheet for the breathalyzer had 3 separate "trials" where they were supposed to measure the control sample. All 3 just had the exact value that it was "supposed" to get. My lawyer said that there was pretty much no chance that they actually took 3 readings and got the exact same number - it's simply not within the accuracy of the device - but what are you gonna do? You can't prove it.

Not a mistake. (1)

forkfail (228161) | more than 2 years ago | (#39302815)

But systematic fraud.

Where the aspect of malice comes into play on top of the fraud is whether or not the cops in question knew that the devices were giving consistent results of drunkenness or not.

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