Not that we’re in the business of giving free legal advice, but there are a few things every lawyer should know. Lawyers should know how to handle a traffic stop, for instance. They should know how to handle cops who shout slurs at you from across the street. And of course, lawyers should never snitch.
Some of these lessons come as a shock to laypeople, and even some lawyers who didn’t pay enough attention during Criminal Procedure. But high on the list of things that trained attorneys should never do is submit to a breathalyzer test. You don’t need to be a DUI defense attorney to know that you don’t blow.
The unwritten rule isn’t there to protect drunk drivers (okay, it kind of is there to protect drunks who operate high-speed killing machines); it’s also there to protect innocent people who don’t want to get caught up in the criminal justice system.
An article in today’s Washington Post underscores the point: the breathalyzer simply cannot be trusted, and juries can’t be trusted to know that…
Look at how many people were wrongly convicted — in part because of breathalyzer results — in Washington, D.C. alone over the past couple of years:
Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.
D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said.
Apparently, the calibrations weren’t even close to being correct:
The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said.
That is just unacceptable; are we sure that only 400 people got screwed by this?
The flawed testing does not jeopardize cases involving accidents or injuries, including fatal crashes, because blood or urine samples would have been taken as additional evidence, Nickles said.
Nickles said he does not believe the new findings will change the results of the routine DWI cases, either, because officers often relied on field sobriety tests and other observations for their arrests. Still, Assistant Police Chief Patrick Burke said he could see “reduced charges in cases.”
If there is a defense attorney in the metro-D.C. area working on DWIs who buys that argument from Attorney General Nickles, then that defense attorney should be disbarred. You’re telling us that a breathalyzer result that was potentially 20% higher than it should have been wouldn’t influence a person’s plea decision or prejudice a jury? You’re saying that any number of DWI defendants would have been convicted on the strength of field sobriety tests and “other observations” alone? “Reduced charges”? D.C. courts should be flooded with entirely new trials to the extent that breathalyzer results were heavily relied upon evidence for convictions over the past two years.
Which brings us back to the central point: Don’t. Blow. Ever. It’s self-incriminating — and potentially falsely self-incriminating — for no reason. If we want to protect ourselves from idiots who drive drunk, the way is to increase penalties on those rightly found guilty, not increase the likelihood that we’ll wrongly convict innocent people.