Cases involving results from breathalyzers used by state troopers may be challenged

A software glitch could throw doubts over thousands of drunk driving cases in New York.

Engineers are questioning the technology used by the state police to prosecute DWIs. The problem may be in the computer code in a widely used breathalyzer system.

The questions were raised by computer experts hired by a drunk driving defense lawyer in the state of Washington, but if the issue gets a sympathetic judge in a New York courtroom, it could bring a tough look at an important tool for prosecuting suspected drunk drivers.

"The software is making incorrect assumptions," drunk driving defense lawyer Ed Fiandach says. "It's assumptions that are being made by the software that may very well be convicting people here."

Fiandach says questions about the Alcotest 9510 breathalyzer have been around so long, they're in his book. A new report on the tech website ZDNet says engineers found problems with the 9510's software.

In 2008, a New Jersey case established that some software in Drager equipment was buggy, and late last year, Massachusetts suspended using the readings.

A New York State Police representative says troopers do use the Alcotest 9510, but that its readings are only a small part of the overall evidence that convicts someone of driving drunk.

"You've got about 20,000 tests being done on the 9510 annually," Fiandach says. "If all those tests were bounced, you don't have to be a rocket scientist to realize that it is a lot easier to attack a police officer's opinion than it is to attack a breath-testing machine."

Fiandach says it's possible new doubts could bring challenges to new, and old, drunk driving cases just like what happened after questions about the older breathalyzer system.

"I mean, my phone rang off the hook with people that were convicted and wanted to go back and try to open up their old convictions," Fiandach says.

But Fiandach says a lot will depend on how much public attention questions about the systems get because that could get the attention of judges.

A big challenge is that the company that makes the system protects it as proprietary and won't let outside engineers poke around its software unless a judge orders it.

For now, Fiandach says judges defer to the State Department of Health, which has the Alcotest 9510 system on its list of reliable drunk driving tests.