Don’t Trust the Government with Breathalyzers and other Forensic Evidence


Ryan McMaken – November 26, 2019

Thanks to the proliferation of body cameras and security cameras attached to homes and businesses, police are far more frequently being caught lying.

For example, this month, NYPD cop Michael Bergmann lied about nearly being struck by a suspect’s car. Bergmann was convicted of perjury when a surveillance camera showed otherwise. Earlier this year, Florida cop Zach Wester was caught on his own body-cam of planting drugs on innocent people. He now is awaiting trial. This past summer, thanks to their own body cams, two police officers in Willis, Texas, were convicted of lying about a suspect “evading arrest.”

But at least there are some things we know are reliable when it comes to police investigations: those are the scientific tests conducted by prosecutors and police agencies used in forensic analysis. At least those things are done by reliable and impartial experts, right?


For example, last week, The New York Times released the results of a new study showing that so-called breathalyzer machines, long used as evidence against alleged drunk drivers, are not reliable.

According to The Times:

But those tests [i.e., breathalyzers] — a bedrock of the criminal justice system — are often unreliable, a New York Times investigation found. The devices, found in virtually every police station in the U.S., generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place.

Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight. Across the country, thousands of other tests also have been invalidated in recent years.

The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40% too high. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or homebrewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside 

The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.

A county judge in Pennsylvania called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny. In response, local prosecutors stopped using them. In Florida, a panel of judges described their state’s instrument as a “magic black box” with “significant and continued anomalies.”

Devices meant to measure sobriety require the operator use the instrument properly, and that the devices be properly maintained and calibrated. Unfortunately, government agencies have no incentive to ensure that breathalyzers are used properly or that they yield proper results — so long as the results tend to lead to more arrests and more successful prosecutions.

While many cases can likely be chalked up to laziness and incompetence, other cases showed active efforts at fraud. An investigation of the Massachusetts forensic lab, for example, showed “the lab had hidden records of hundreds of failed calibrations.”

It’s not just front-line police officers who are using faulty devices. Other state agencies and staffers are actively attempting to cover up the shortcomings of these “scientific” instruments.

Nor are the misdeeds uncovered in the Times report the first time we’ve heard of similar problems with police agencies corrupting scientific tests.

In 2017, The Denver Post reported on how staff at the Colorado state Department of Public Health and Environment was actively forging “validation certificates” used to certify breathalyzers for use. In the rush to get the devices on the street, state workers were falsifying paperwork rather than doing due diligence.

This wasn’t the first time that state personnel was shown to be cutting corners on tests of this sort.

In 2016, for example, the Colorado Bureau of Investigation admitted “at least 56 of the DUI blood tests it conducted [4 percent of all tests] in the last six months were incorrect.” Of those 56 confirmed cases, all of them erred in favor of the police and of prosecutors. That is, “the initial results in each of those 56 cases showed lower alcohol levels for the drivers than when additional quality assurance retesting occurred.”

These are not roadside tests, mind you. These are blood tests performed in a controlled setting.

Not surprisingly, federal law enforcement organs also engage in similar types of fraud. In 2015, The Washington Post reported that admissions from the FBI and Department of Justice “confirm long-suspected problems with subjective, pattern-based forensic techniques — like hair and bite-mark comparisons — that have contributed to wrongful convictions in more than one-quarter of 329 DNA-exoneration cases since 1989.”

In other words, allegedly scientific and objective analysis is commonly distorted by a variety of law enforcement organizations and other state agencies.

Unfortunately, these lab workers and bureaucrats don’t wear body cams of their own at all times. But it seems they should.  After all, the behavior of these forensic “experts” and lab workers is no different than outright lying about the behavior of defendants at the time an arrest is made. Body cams might catch a crooked cop planting meth on hapless motorists. But the state’s scientific “experts” unfortunately have far more leeway.

Some police officers on the front lines testify that defendants did things they didn’t do. Meanwhile, some state lab workers lie about what’s found in the blood of defendants. Or they’re just too lazy to bother using their own tools properly.

In any case, the result is often ruined lives, and immense court costs for innocent defendants.

This is the other side of the failed “social contract” we live under. The state claims it has a right to extract taxes from residents and taxpayers because the state provides “safety” in return. Yet the courts have established police agencies are not actually required to protect citizens from violence at all.

As if that weren’t bad enough, taxpayers also pay state analysts and lab workers — some of them quite handsomely — to help prosecute citizens based on faulty forensic evidence.

This social contract increasingly looks like it’s a pretty bad deal for many of us, after all.

Originally published at Ryan McMaken is a senior editor at the Mises Institute. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.

Image source: Getty

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