New DWI Technologies and What They Mean for Your Defense

Every day in the United States 30 people die in alcohol-related vehicle accidents, or one person about every 48 minutes. So, it's not surprising that the federal government is very interested in finding ways to keep American roads safer.

Legislation has been introduced in both chambers of the U.S. Congress that will require every new car made after 2024 to come equipped with technology that will detect when a driver has had too much to drink and will prevent that driver from operating the vehicle.

If you or someone you know has been convicted of DWI, you may already be familiar with the type of technology the proposed legislation would require every new vehicle to have. The proposed technologies include ignition interlock devices and breathalyzers that require the driver to blow into the device before their car will start.

Legislative Changes

At the same time, the National Academies of Sciences recommends dropping the blood alcohol (BAC) level from .08 percent to .05 percent. Some states already set the Blood Alcohol Content (BAC) limit at .05%. almost there with a .05 percent standard going into effect at the end of 2018. No doubt, lowering the limit and requiring every vehicle to test every driver could save lives, but these measures could also create massive issues for drivers and potentially create unnecessary legal dilemmas.

According to researchers, politicians, and advocates, the new technologies could save lives. One proposed technology measures the breath of the driver using sensors positioned in the steering wheel. Another method measures alcohol levels under the skin with an infrared light scanner and screens the driver when they touch the start button or another specified surface such as the shifter inside the car. Still another technology senses alcohol in the cabin air near the driver.

Since 2015, the federal National Highway Traffic Safety Administration has been studying technologies that might reduce drunk driving through a program called Driver Alcohol Detection System for Safety (DADSS).

New Technologies Being Considered

One technology being considered is similar to the traditional Breathalyzer that law enforcement officers use to check BAC, but doesn't require a deep breath to be blown into the device. The device allows the driver to breathe normally and the exhaled air enters through a sensor port, which measures the amount of alcohol and carbon dioxide molecules present. The company making this device is currently testing it for various scenarios based on lung capacity, alcohol consumption, and breathing patterns—all of which could throw off the readings. The company is trying to eliminate the possibility that a drunk passenger could trip the sensor and register an illegal BAC, which wouldn't allow a sober driver to operate the vehicle—a scenario that could make it impossible for anyone to be a designated driver.

Another technology being considered is more complex. It measures a driver's BAC via the capillaries in the finger under the skin. Infrared light is shined on the finger for the device to scan for an elevated concentration of alcohol, which appears on two specific wavelengths of light. For this device to be effective, it would need to be on a surface only the driver will touch, such as the start/stop button or the shifter. However, it also seems likely that a driver who might be over the legal limit could solicit assistance from a friend to touch the start/stop button to bypass the detection technology.

Reasons for Hesitation

The federal government has been researching ways to require technology in cars that could prevent drunk driving for more than five years. There are several reasons why the technology has not been rushed into use. One reason is that the technology must be “seamless, accurate, and precise, and unobtrusive to the sober driver. It must also be proven reliable to be installed in the vehicle fleet,” according to the National Highway Traffic Safety Administration. Right now, there are still too many opportunities for the devices to lock people out of their own vehicles because of false results, brand them as intoxicated when they aren't, or to discourage positive behaviors, like a sober driver giving a ride home to an intoxicated friend. Additionally, there are still many ways for users could sidestep the technology and continue to drive intoxicated which, no doubt, some will try to do.

Resistance from Industries

Another reason for the delay in implementation is that the proposed legislation is extremely unpopular with the alcohol and restaurant industries, particularly in light of some states setting lower legal BAC limits. If in-car alcohol detection is required in vehicles and the BAC limits are set to .05% or lower, bars and restaurants nationwide could struggle to stay in business. But if the level is set at a lower level, such as .03% or .04%, individuals who may not be capable of driving at that BAC could feel empowered to do so because their vehicle gave them the go-ahead.

Breathalyzers Are Often Wrong

This most disturbing reality with the new technologies being considered is that each device is basically a breathalyzer and, as millions of people who have been accused or convicted of DUI and DWI and thousands of defense attorneys know, breathalyzers can be extremely unreliable.

An in-depth New York Times investigation found huge problems with the breathalyzers used by law enforcement agencies across the country. Reporters found that judges in Massachusetts and New Jersey alone threw out more than 30,000 breath tests just last year because of human error and lax government oversight. The investigation found that because breathalyzers are frequently not calibrated properly they can often overstate a driver's BAC by 40%, far more than enough to create evidence that could lead to a DWI conviction for someone who was not even driving impaired.

Numerous problems have been reported with breathalyzer technology, maintenance, and software, and those problems have led, time and again, to people being wrongly charged and convicted with DUI or DWI.

Despite the widespread knowledge that the breathalyzers are not reliable, every state punishes drivers who refuse to take a breathalyzer test when they are ordered to take one by a police officer.

The new technologies proposed to be implemented in every vehicle by 2024 are in many cases very similar to the devices law enforcement officers are currently using. One such device, the Alco-Sensor IV, contains fuel cells that react to the alcohol in exhaled breaths. It is already known that older women sometimes are not able to exhale powerfully enough to get the machines to work, and that toothpaste, mouthwash, breath mints, and even burping can throw off the results.

Other widely used alcohol detection devices that are heavily reliant on software and technology have frustrated defense lawyers for years. Lawyers, while attempting to represent their clients, have tried—and not been allowed—to analyze the programs that determine whether a driver is over the legal limit.

More Technology, More Problems

Nationwide, defense lawyers and judges, and even some law enforcement officials, know that breathalyzer technology has led to the wrongful convictions in thousands of cases, and to even more people's lives being upended while they fight drunk driving charges. Even after so many years of law enforcement relying on breathalyzers to determine when drivers have had too much to drink, the potential for erroneous results is inconceivably high.

With so many documented issues with breathalyzers and other alcohol detection devices, expanding the use of such devices to every new vehicle is a prospect that should concern everyone. Drivers could face, on the light end, the inconvenience of a false positive preventing them from driving their vehicle home. On the more serious end, drivers who need to drive somewhere quickly—to get emergency medical care, to leave a dangerous situation, or to help a friend in need—could find their efforts frustrated and impeded by faulty technology.

On the other hand, if a vehicle alcohol detection device incorrectly registers an intoxicated driver as being fine to drive, the driver could get into an accident or be charged with DWI after being reassured by their vehicle that they were not drunk.

Technology is often wonderful and can add tremendous value and convenience to life. In the case of drunk driving, there is potential for these new technologies to make the roads safer for everyone, saving thousands of lives every year. But with so many questions about the efficacy and reliability, not to mention the implementation, the prospect of putting these devices in every new vehicle is scary, to say the least.

If you've been arrested for DWI and a breathalyzer or other test indicated you were intoxicated, you need the help of an experienced Houston DWI attorney. Breathalyzers can be very unreliable and Doug Murphy, a Board Certified DWI defense attorney, may be able to help you challenge the evidence against you. With his help, you can secure the very best outcome in your Houston DWI criminal case. Contact the Doug Murphy Law Firm, P.C. or call today at (713) 229-8333 to schedule a free consultation.

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