Breath Test Foul-Ups in Vermont Could Overturn DUI Convictions

Foul-ups with breath tests in Vermont could overturn dozens of drunk driving conviction in the Green Mountain State.  The machine that performs the tests was not set up properly by chemists from the Vermont Department of Health. The DOH is in the process of being stripped of responsibility for this task. The machines worked properly; however, they were not programmed to activate a self-check detector called a tolerance detector. When set up properly, the machine checks the alcohol content of a known control sample before it analyzes a suspect's breath. The DOH admitted that the self-check feature was not enabled due to human error. The machine in question was located at the state police barracks in Royalton. It operated for almost a year in this condition. It appears that the device was properly set up by May 2010.

Erroneous DUI Tests

Because of this, almost all the tests performed by this machine could be erroneous. "People can go to jail and lose their driver's licenses based on this science," noted a local defense attorney. "When they don't maintain the machines like this, it's disturbing." Hundreds of cases since 2008 could be based on improperly supported evidence. Prosecutors are presently mailing notices to defense attorneys and drivers that evidence of alcohol impairment may have been compromised.

Prosecutors in Windsor County are seeking to vacate approximately 33 license suspensions because of the mistake. At least four license suspensions in Orleans County have already been vacated. However, prosecutors have stated they are not seeking to dismiss convictions based on the tainted evidence. They believe that they have sufficient evidence even without the machine test records to support the convictions. So far, no one in Windsor County or Orange County has requested that their case be reopened, according to prosecutors. A representative of the Department of State's Attorneys would not provide an estimate of how many cases could be affected.

If you were convicted of DUI in Vermont after 2008, contact your attorney regarding this issue. He or she will be able to advise you if the circumstances of your conviction and/or license revocation should be reviewed by the court.