Attorney who flagged faulty breathalyzers: There’s ‘no telling’ how many cases impacted

[MUSIC PLAYING] NINA MOINI: So our top story, the state's Bureau of Criminal Apprehension is reviewing potentially faulty breathalyzer tests today after ordering a pause on use of breathalyzer testing equipment statewide on Friday. They discovered multiple errors in test results, which could affect hundreds of DWI cases. Chuck Ramsey is a defense attorney who flagged an issue with the tests. He joins me now to explain more. Thanks so much for your time this afternoon, Chuck.

CHUCK RAMSEY: Yeah, you're welcome. Thanks for having me.

NINA MOINI: I think everybody's probably heard of a breathalyzer test, but not everyone knows exactly how they work. Would you be willing to explain your understanding of how it works, and then what was faulty?

CHUCK RAMSEY: Yeah. So these tests are fairly basic. A person blows into the instrument, and the instrument measures the amount of alcohol on a person's breath. But here, the issue is with a critical scientific component to ensure the test's accuracy, and that's called the control. And a control is a gas cylinder with a unique alcohol concentration that's installed in the breath test machine.

And without a properly documented gas cylinder installed, the control, and properly documented, the state crime lab will not testify that the test results are accurate and reliable. So that's what we're looking at here in these cases.

NINA MOINI: And tell us a little bit about how you discovered there was an issue.

CHUCK RAMSEY: What we saw was we were, as with every case, going through the crime lab's records, their maintenance and calibration records, and we saw that everything appeared to be in order. But that immediately before my client's test, there was a documented control change. And because I had that first test, I also had the officer's body-worn camera recording. And while the documentation shows that the officer changed this gas cylinder, the control, his body-worn camera revealed that he had not.

So there was the-- the control that ran my client's test was not documented. That they had the wrong control and they had the wrong unique alcohol concentration. I called the lab, and they-- excuse me, confirmed that that was indeed the case. And that all 73 cases associated with that erroneously control were invalid. That they could not go into court and testify that any of those tests were accurate.

NINA MOINI: So I read that in the case, then, of pertaining to your client, I think it was Aiken County, decided not to pursue the case. How many other cases do you think could have been affected realistically?

CHUCK RAMSEY: So it's gone now beyond Aiken County, and in addition to that specific type of error with that control, we have seen that there are other issues with the control. That officers are properly documenting the control cylinder, but they're using the wrong type of control cylinder. And this is something we're able to notice readily just by looking at logs.

We have-- well, we just got our 10th county in before we called you today. And so now it's up to 10 counties. And it goes back-- we've got one as old as 2020 here. Because, Nina, there are over 20,000 of these tests every year, and this instrument has been deployed more than 12 years, there's no telling how many cases this could have affected.

But I'll tell you this, it's certainly much broader than what the BCA is aware of today. And they should be aware of it. They have all the documentation that I have. But we're looking at hundreds and hundreds that we've got proof of right now, but there's no telling how far it can go.

NINA MOINI: And the BCA says it's rolling out a new procedure, I guess, including centralizing the maintenance of the breathalyzer tests, but again, a pause right now. I mean, this really has serious implications for the court system, these people's cases that had already been tried with this information, and people who might be driving around, unfortunately, right now under the influence. I mean, perhaps there are other ways to make those arrests.

I always thought the breathalyzer test was really, really critical in both the stop and the legal proceedings to follow. I mean, what does this mean for just our safety as drivers on the road, and for all of the people who had these court cases?

CHUCK RAMSEY: Well, first of all, I think the pause should be temporary. It would take just a moment to look inside the machine and compare the lot number listed on that gas control with what has been inputted into the computer. So the stoppage should be, in my opinion, very brief, and all of the instruments should be up and running today.

Going forward, yes, the BCA should change their procedures because they've just made it too easy for police officers to confuse two identical-looking gas cylinders, and I think it would be simple to implement a change with the markings. So I don't think it immediately affects the public safety, thank goodness.

I think where the biggest problem lies is all of the criminal charges in cases currently pending that rely on this breath test result should be dismissed immediately, and that's what we're seeing and hearing from prosecutors across the state.

As with driver's licenses, that are in a separate matter. Drivers should be aware that they must hire a lawyer to challenge those license revocations or they will continue to suffer the license ramifications even if the prosecutor dismisses the charges and apologizes.

NINA MOINI: What about cases-- oh, I'm sorry. Just cases that were already decided? Yeah.

CHUCK RAMSEY: Yeah, and so that represents an even bigger problem. And prosecutors have an ethical and constitutional duty under a case called Brady to notify all of those criminal defendants and their attorneys of these errors if it's reasonably known to the prosecutors-- or should be known. And so these people should have the right to reopen their criminal cases that use these invalid breath test results.

NINA MOINI: Well, it sounds like that could take a really long time, and then, as you mentioned, if someone has already living without a license, it just sounds like that could take a really long time.

CHUCK RAMSEY: I think it is, and it will-- I hope it doesn't overwhelm prosecutors and the courts to too much of a degree.

NINA MOINI: What role do breathalyzer tests typically play in DWI cases? I mean, is that basically the make-it-or-break-it part of a case? Or are there other means.

CHUCK RAMSEY: Well, it's probably the most important tool in a prosecutor's toolbox. The public, when they hear that someone is over the legal limit by a breath test, they generally will just assume the person is guilty. But there are other tools in that toolbox. For example, officers can do it the old-fashioned way. They have these field sobriety tests. They have their own vision, their sight, and their smell, and their opinion.

And so whenever a person is charged with a DWI, generally, there are two charges. One is being over the legal limit, but the second one is just being impaired. And that charge could remain, and I think that's available to prosecutors as well.

NINA MOINI: OK. So from what you were saying earlier, I'm curious to know if you think the BCA, who was looking into a variety of things around this still right now, but during this pause, they're talking about centralizing the maintenance and bringing it in-house instead of the individual officers or departments. You mentioned it can be kind of confusing. I mean, do you have faith that this will be a helpful step if the BCA goes through with that? Or what do you suggest, because I imagine breathalyzer tests need to be used.

CHUCK RAMSEY: Yes. So first of all, the recognition that there's a problem is the biggest step. That's a breath of fresh air, we don't always get to see that. In fact, we have reports indicating that the BCA knew about this, as I said, going all the way back to 2023.

And, yeah, I don't believe this should be left up to individual officers. As already indicated, there are ways they can mark these cylinders differently to make it obvious what they are.

But I'm a little concerned about the expense that the BCA is going to go to. What, are they going to hire additional staff to go out to these sites across the state? Will they require officers transport these machines to the lab every time there needs to be a control change? I don't know, but I do think there are simpler, more expedient, less expensive ways to handle this.

NINA MOINI: Mm-hmm. And we certainly, as a newsroom, have requested comment from the BCA about some of the intricacies that you're talking about, as well as how long the agency has been aware of the potentially faulty breathalyzers. Chuck, thank you very much for coming on the program and breaking this down for us. Really appreciate your time.

CHUCK RAMSEY: You're very welcome. It's my pleasure.

NINA MOINI: That was defense attorney Chuck Ramsey.