Blown Out of Proportion

Just in time for holiday parties, the California Supreme Court says drunken drivers can’t challenge the reliability of breathalyzer machines.  In a ruling last week, the justices rejected claims by a San Diego man who blew .095 and .086 percent in a 2007 DUI test when anything over .08 percent blood-alcohol is enough to show drunken driving.

The court held that as long as the breathalyzer is properly calibrated the offender can’t use as a defense scientific testimony that the machines are inherently unreliable.

Terry Vangelder was stopped in December 2007 by the Highway Patrol after the pickup truck he was driving hit speeds of 125mph on a freeway at 2:30a.m.  He smelled of alcohol when the officer stopped him and was given a breath test.

During a trial Vangelder’s lawyer argued that breath-testing machines are unreliable based on testimony by University of Washington professor Michael Hlastala, who studies blood alcohol and how it is measured.

He has said in published studies that the test of exhaled air is unreliable because it can be affected by breathing rates and other factors.

The California DUI Lawyers Association, (yes, they have an association), argued in support of Vangelder that defendant’s have a right to challenge the reliability of breath-testing machines generally and that the state is trying to ignore any problems with the alleged failure of the breath test used in this case.

Chief Justice Tani Cantil-Sakauye pointed out that although many other states use the machines, neither Vangelder nor the DUI Lawyers could cite any decision from any other state allowing testimony that challenges the general reliability of breath-testing equipment that is properly maintained and operated.

The court held that defendants will remain free to argue and present evidence that a particular machine used in a case malfunctioned, or was improperly calibrated or used incorrectly.

“The fundamental reliability of federally approved, properly calibrated and employed breath-testing machines used in the application and enforcement of the per se statute is a matter that has been determined as policy by the Legislature  — and the defendant’s expert witness may not invite a jury to nullify that determination in the manner at issue here,” she wrote.

The decision was unanimous.

Case: People v. Vangelder, No. S195423


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