NCJ Number
108057
Journal
North Dakota Law Review Volume: 59 Issue: 3 Dated: (1983) Pages: 329-348
Date Published
1983
Length
20 pages
Annotation
The article examines three primary methods used by courts to insure the accuracy of breath-testing devices.
Abstract
Breath-testing devices are used to measure the amount of alcohol in the body of a driver arrested for drunken driving. At trial, a court often chooses one of three primary methods to establish the accuracy of breath alcohol tests. One method, the foundation approach, places the burden of proof on the State to insure that the breath tests are admissible. The State must establish that the breath-testing device was operated according to the manufacturer's recommendations and according to the rules and regulations promulgated by State authorities. The article cites case law to show that relying merely on an adequate foundation for admitting test results may not protect a defendant from being wrongly convicted. The second method, the discovery approach, gives the defendant driver access to the chemical used, the testing device, and other factors surrounding the test. The defendant wants to discover whether the breath-testing device performed accurately. He must prove four elements to have this right to discovery protected by the due process clause of the U.S. Constitution. Some States do not retain and store the chemicals and materials used in breath tests. Thus, the reconstruction of the defendant's breath test may not be discoverable. The third method requires the State to provide a second independent testing of the initial chemical analysis of the defendant's breath. The article argues that courts should not rely solely on any one of the three methods but should coordinate them in order to create a policy ensuring the accuracy of breath-testing devices. 160 footnotes.