By Jon Hood

June 13, 2010
A lawsuit filed against Washington, D.C., says that the city has long known that its breath test machines, designed to measure the level of alcohol in a driver's blood, were improperly calibrated, but failed to do anything about it.

The revelation that the machines were improperly programmed was first reported in The Washington Post this past week week. The article said all ten of the city's breath test machines, the results of which formed the basis of nearly 400 DUI convictions since fall 2008, were improperly calibrated by city police.

The officer charged with maintaining the machines set the wrong "baseline" alcohol concentration levels, leading to results that showed a driver's blood alcohol 20 percent higher than it actually was, according to the article.

Thomas Key, the attorney who filed the suit, called the Post's account of the incident "pretty vanilla.

"We alleged that the attorney general's office knew back in early 2008 that the machine had problems," Key told the Daily Caller.

D.C. Attorney General Peter Nickles didn't begin investigating the problem until this past February, when a city consultant raised concerns that the machine results were incorrect. The city has already replaced the ten flawed machines with equipment made by a different manufacturer.

Breath test machines, known colloquially as Breathalyzers, are used to test the blood alcohol content of a person suspected of drunken driving. While many states still have so-called "common-law DUI" statutes -- which allow prosecution for drunken driving based on a driver's appearance or behavior, such as glassy eyes or weaving in and out of lanes -- the machines provide a much tighter case for prosecutors.

"I'd take a case without a score any day and beat that," Key told the Post. "But once they have that test number in there, it's a whole new ballgame for a client."

Nickles said the error would not affect prosecutions in which there was an accident or injury, since drivers in those situations are required to submit to additional blood or urine testing.

Most of the defendants in the 400 subjects cases spent at least five days in jail, in addition to the other serious consequences that accompany a DUI conviction. Under D.C. law, a person convicted of his first DUI must pay a $300 fine and can be sentenced to up to 90 days in jail. If his blood alcohol content is between 0.2 and 0.25, he is mandated to spend at least five days behind bars. If the reading exceeds 0.25, the mandatory sentence increases to ten days.

The consequences are even more serious for repeat offenders. Those convicted of a second or third DUI can pay anywhere between $1,000 and $10,000 in fines, and can end up serving up to a year in jail. Additionally, the mandatory sentences for repeat offenders are doubled.