Feel Any Safer? Pennsylvania Police Ditch Breathalyzers to Catch DUI Offenders

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One court ruling may have tipped the first in a large row of dominoes. The Pennsylvania State Police are abandoning their use of breathalyzers at DUI stops, at least temporarily. The decision comes on the heels of a ruling from a Dauphin County judge that threw out 20 charges of driving under the influence based on the unreliability of breathalyzer equipment. The particular device in question is used by authorities throughout the state, according to CBS News. With DUI charges and convictions set to be challenged and possibly overturned across the state based on the ruling, police are moving to blood tests exclusively to catch drunk drivers. The dependence on blood samples could lead to safer roads, but the move may also fly dangerously close to an invasion of our constitutional rights. It’s clear that police are dependent on outdated technology for detecting drivers under the influence. Are they doing enough to replace what isn’t working? A more sinister question: how do we feel about the police trying to take our blood without a warrant?

DUI in Pennsylvania is a Major Problem

Drunk drivers kill hundreds of people in Pennsylvania every year. In 2011, intoxicated motorists caused 11,805 accidents, of which 238 fatal crashes were fatal. Total number of deaths? More than 400 in the same year, according to the Pennsylvania Department of Transportation (PennDOT). What’s so concerning is the large percentage of drunk drivers who are under the legal drinking age. About 26 percent of the driver deaths in the 16-20 age group for 2011 were drinking drivers, says PennDOT. The rest of the most recent statistics aren’t encouraging:

  • Alcohol-related deaths accounted for 33 percent of all traffic-related fatalities in Pennsylvania.
  • On average, 32 alcohol-related traffic accidents occurred around the state each day.
  • Every day, an average of 1.2 persons died and 23 persons sustained injuries in collisions with drunk PA drivers.
  • From 2007 through 2011, drunk drivers on Pennsylvania roads killed 2,405 people.

The penalties for a DUI conviction in Pennsylvania vary based on the driver’s blood-alcohol level (BAC) and the presence of any previous drunk-driving convictions. For a first offense, a drunk driver with a “low” BAC could receive up to six months’ probation, a $300 fine, and be required to attend an alcohol safety course approved by the state. Penalties, of course, escalate with additional convictions and higher BAC levels, but there’s a fundamental flaw in the system. The punishments don’t go far enough to deter repeat offenders by leveling lengthy jail sentences and fines against them. First-time offenders may not receive a license suspension, if they a ‘low’ BAC at time of arrest. Does that deter a repeat offense?

The Intoxilyzer 5000 is ready for Retirement

The device that led to the courtroom toss of a DUI charge in Harrisburg is the Intoxilyzer 5000, one of the more ubiquitous tools used by police for catching the average plastered driver. In use since the mid-90s, it looks more like a Beta Max with a pipe cleaner attached – doesn’t fit the image for typical police equipment. Or maybe it does? It’s bulky, painfully immobile, and requires officers to take suspects into custody and bring them back to the station for testing. In that time, a suspect’s BAC could drop below the legal limit, which could allow them to skate by with only a delay in their tipsy ride home. There’s also the worst case scenario, where the Intoxilyzer 5000 turns in a false reading, which either allows a drunk driver to walk, or sends an innocent person to jail.

As defense attorneys have pointed out time and again, the device works with its own margin for error most of the time. However, most of the time doesn’t mean all of the time, which can lead to those unfortunate life derailments described above. The device is far from infallible, and multiple factors can influence the results it generates:

  • Acid Reflux Disease – Have chronic heartburn? The gases in your stomach caught in your esophagus can keep alcohol close enough for you to breathe out ethyl vapors long after you’ve stopped drinking. In fact, these vapors can generate a false reading on an Intoxilyzer 5000. You could be stone sober and still headed to jail.
  • Living with Diabetes – Diabetics under certain conditions produce higher concentrations of acetone than those without the disease. Acetone in the breath can cause false readings for alcohol on a breathalyzer device because the organic compound absorbs the same infrared light as alcohol. The Intoxilyzer uses infrared light to determine the percentage of alcohol in someone’s breath.

Can’t Get Better Results with Old Equipment

Drunk drivers kill people. Are we willing to continue using the same tired technology to catch them in the act, or we willing to explore other options? The PA State Police halting the use of the Intoxilyzer 5000 is the right move, if it spurs the use of more modern devices, including handheld breathalyzers, to catch potential DUI offenders.

Could this be an opportunity for authorities to purchase improve breathalyzers across the board? Absolutely. Will it happen? Not while blood tests are the main evidence-gathering tool.

Relying on blood tests to identify those who’re driving drunk is a massive time sink. Officers who catch suspected drunk drivers must take these people into custody, drive them to the nearest hospital with a phlebotomist on duty, and hope the test results aren’t muddied by medical error or time delay. Then there constitutional rights concerns as to whether or not police can force suspects to give blood samples without a warrant.

Blood Tests and Your Rights

Roadside blood tests? Doesn’t sound very safe. Imagine authorities trying to open packets containing sterilized needles at 3 a.m. with nothing but blue and red flashing lights to see by. Are we training police officers to collect evidence in that manner and to do so with the safety of themselves and suspects in mind?

Refusing a blood test without a warrant is still legal, though it may come with the same penalty as refusing a breathalyzer test in Pennsylvania – and immediate license suspension. In effect, it’s an admission of guilt in the eyes of authorities. With the temporary abandoning of breathalyzer tests in Pennsylvania, there’s the potential for more suspects to elude justice. Consider this: How do officers plan to collect evidence, and catch more drunk drivers, when suspects can simply refuse to comply with their only viable method of acquiring conviction-worthy proof?

Being able to force DUI suspects to give blood without a warrant could solve that problem. The move could also infringe on the constitutional rights of every American.

The Fourth Amendment under Attack?

The Fourth Amendment, which protects against “unreasonable search and seizure,” is the central argument in Missouri v. McNeeley (docket #11-1425), which is currently before the Supreme Court. In this case, the highest court in the land is considering if a warrantless blood draw of Tyler McNeeley violated his Fourth Amendment rights. McNeeley, according to the Supreme Court’s website, refused to give a breath sample during a roadside DUI stop in Missouri. The officer handling McNeeley then drove him to a nearby hospital and forced a technician to draw blood from the suspect without his consent.

The Missouri Supreme Court ruled that evidence collected in such a manner was inadmissible because it violated McNeeley’s Fourth Amendment rights under the Constitution. Missouri obviously disagreed, and appealed the decision to the Supreme Court. The decision, looming by the end of 2013, could have vast implications for how authorities collect evidence and our rights to prevent them from accessing our bodies whenever they choose.

Can We End Drunk Driving Forever?

Should we have to give up more rights in the name of stopping drunk drivers? No. Emphatically, no. Effective use of current methods, including a serious upgrade to breathalyzer technology, should be the first steps we take. Aggressive enforcement actions are what make people safer and ensure more drivers who break the law pay the consequences. Broadening the powers of law enforcement to collect the “best evidence” isn’t necessary, because they already have that ability.

Ending drunk driving in Pennsylvania and states across the country is impossible. No matter what defection tools we have in place, someone is still going to make the careless decision to put the car into drive after they’ve had too many. What’s going to make our roads safer, and deter driving under the influence, is a greater devotion to modern detection equipment, including handheld breathalyzers and other digital devices. Armed with data collected from more reliable breathalyzers, officers have powerful evidence to secure the warrants that can lead to blood samples. From there, we have better evidence, a clearer picture of driver impairment, and safer roads.

That’s all anyone wants, right?

Disclaimer: Results may vary depending on your particular facts and legal circumstances.

This article was professionally reviewed by Richard P Console Jr, an attorney licensed to practice in New Jersey, New York, and Pennsylvania.

Mr. Console has more than twenty years experience practicing personal injury law and successfully resolving vehicle accident claims on behalf of his clients.

Learn more About Richard P Console Jr.

While this information was reviewed for accuracy, it should not be considered legal advice. Every claim is different. If you are thinking of pursuing a personal injury claim and have a question contact us directly. 

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