Some DUI Cases in Danger of Being Thrown Out

WASHIINGTON - DC Police machines that are used to test blood alcohol levels weren't calibrated correctly. That is opening the door for a lot of people who tested above the legal limit of .08. Some charges have already been tossed out.

It's not roadside breath test, it's the larger full size device, called an Intoxilyzer, that someone would blow into that determines a person's alcohol concentration. MPD has just learned over the past 2 years at least 8 of those machines were not working right and that may lead to some problems prosecuting cases.

The Intoxilyzer machines in question were being used over a period of time from October 2008 through this month.

Police say they were doing an audit of all the machines when they found out there was a problem with some of them, so they took them all out of service.

"Over the past couple of days we have had experts from the outside come in put machines back in service.
Now we are trying to figure out where the problem was," says Police Chief Cathy Lanier.

In addition to pulling the machines, investigators had to pull some cases they were used in.
They are now working with the office of the Attorney General to see if the questionable
Intoxilyzers were used. If they were, then those results will be taken out of the prosecution.

"It's a lot of work because some DWI some DUI cases some use Intoxilyzers, some use breath, blood, urine it's really sorting through a lot of cases to find out which ones were impacted," says Chief Lanier.

"I wasn't surprised. For years myself and other people who do DUI cases have requested info from police on the way they maintain these machines, calibrate and test them," says attorney David Benowitz

Benowitz says one of his clients who was arrested more than a year ago, had some of his charges dropped earlier this week because one of the machines was used in his case.

Benowitz says his client may have been the first, but definitely won't be the last.

"I think this is going to open up a flood gate of appeals motions for new trials. There are people convicted who did jail time on what appeared to be flawed scores."