Breath-test flaw puts driving ban cases in doubt

Deborah Collcutt

DRUNK drivers may have been wrongly convicted because a widely used breathalyser has a recurring fault, new research has shown.

The Intoximeter is used in more than 300 police stations to test drivers who fail a roadside breath test. Lawyers are now challenging hundreds of convictions because of doubts about the machine's accuracy.

Independent research by the Royal London Medical School has shown that the machine has repeatedly failed to read the correct amount of alcohol in the bloodstream. It means that motorists who have consumed only small amounts of alcohol may incorrectly be shown to be above the legal limit.

Robin Falvey, a solicitor involved in several pending cases against the Intoximeter EC/IR, said the apparent flaw could mean that thousands of convictions were unsafe. "If a machine is going to deprive someone of their livelihood and possibly their liberty, it should be seen to be accurate," he said.

The EC/IR is one of three machines approved by the Home Office and is installed in police stations in Greater London, Kent, Surrey, Sussex, the Thames Valley and the whole of Scotland.

The machines are designed to abort the test if alcohol in the mouth skews the final reading, which is intended to show the alcohol in breath drawn from the lungs. If the machine fails to abort the reading, it would mean that a driver who had simply gargled with spirits could be shown to be over the limit.

The research, however, showed that none of the 41 machines initially tested alerted the operators to the presence of mouth alcohol, even though the subjects contaminated their mouths with it.

"The machine has been found not to detect mouth alcohol, which is a prerequisite of its approval," said Falvey. "That means it does not comply with Home Office guidelines and could not be used to convict."

In the past two weeks the reliability of the EC/IR has been questioned by lawyers in more than 300 drink-drive cases in Surrey. Other cases are being challenged at Maidstone, Kent, and Skegness, Lincolnshire. Lawyers are also seeking a judicial review of Home Office approval of the EC/IR. Police are co-operating.

The machine is used in the United States, where its reliability has also been challenged repeatedly. Michele Tjader, an attorney in Madison, Wisconsin, said: "I think this machine has been wrong in a number of cases, but we have been refused access to do tests despite several court orders."

Home Office officials approved the EC/IR in four months, compared with the four years it took for similar machines to be approved. The test relied on robots fed alcohol via plastic tubing, not humans.

The Home Office said: "We are aware of the allegations. The Forensic Science Service had tests carried out on the instruments and we remain satisfied of their accuracy."