Our office has found that attention to the calibration records of breath test devices can often pay off in cases when the blood alcohol content (BAC) measurement is just over .08 percent. We sometimes notice that a machine which one may otherwise assume is accurate is actually calibrated to read 0.11 when a known sample of 0.10 is measured. This can mean a 0.08% BAC is really a 0.07% and a DUI may even be dismissed.

In a major victory for criminal defense attorneys in the San Francisco area, the San Francisco District Attorney’s Office announced this week a joint investigation into the San Francisco Police Department’s use of PAS (preliminary alcohol screening) devices for at least the last five years.

The investigation was triggered when the deputy public defender’s office discovered that since at least 2006, logs of accuracy tests for the devices were falsified, according to the San Francisco District Attorney’s office. Records showed that the police force’s accuracy test logs showed exact matches between sample readings and actual tests, which is mathematically impossible. In fact, the district attorney’s office determined that the San Francisco Police Department actually performed no accuracy testing at all during this five to six year period.

The public defender’s office said the investigation should go back to 2002, but the district attorney’s office said it would only go back to 2006.

A spokesman for the San Francisco Police Department said the department had stopping using the devices as of February 10, 2012.

The ramification of the lax (really lack of) accuracy testing could easily reach state wide in many contexts, including civil lawsuits. According to the San Francisco Police Department, there has been an average of 1,600 DUI convictions per year since 2002. Thousands of DUI prosecutions could be reconsidered, especially insofar as PAS results from the suspect devices served to reach convictions (either via plea or verdict). Such bogus convictions may have the insidious effect of making many a current second (or third) time DUI prosecutions subject to review when the prior DUI is from the San Francisco Police Department.

Yet such obvious ripple effects seem to be really only a small portion of the total number of cases that may be called into question, especially since other police departments may have followed the same testing procedure.

Moreover, it is easy to appreciate other effects such bogus DUI convictions (or even arrests) have caused. Increased insurance rates are just one effect, and perhaps the most widespread. Anyone with a commercial license arrested and / or convicted for DUI based on such practices may have lost their jobs. Other professional licenses may have also been lost. Anyone on DUI probation would have had to submit to a PAS, a PAS device that was not accurately tested. Consequently, there may have been thousands of DUI probation violations that were improperly gained. Similarly, many cars were wrongfully impounded based on a belief that an individual was DUI who really was not.

Socially, many marriages may have been affected, college plans may have been put on hold and the social stigma associated with being “a drunk driver” were needlessly affected.

Greg Hill is a criminal defense attorney in Torrance, California. He graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A. 1994) and Loyola Law School (J.D. 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

Greg Hill is a criminal defense attorney in Torrance, California. He graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A. 1994) and Loyola Law School (J.D. 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

Author Bio: Greg Hill is a criminal defense attorney in Torrance, California. He graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A. 1994) and Loyola Law School (J.D. 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

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