Each year in the U.S., about a million people are arrested for drunk driving, usually based on the result of a breathalyzer test. Here in California, the result of that test is admissible against you in court. But what if the breath testing machine wasn’t set up or calibrated properly? That could produce inaccurate test results, potentially sending innocent people to jail and profoundly upending their lives.

It’s more common than you might think. In fact, according to a blockbuster investigation just released by the New York Times, breath testing machines around the country have been found to be set up wrong, falsely certified or miscalibrated.

Tens of thousands of DUI cases could be overturned

Just this month, the state of Massachusetts will begin notifying about 29,000 people who were convicted of DUI that the breath tests underlying their convictions could not be trusted. The state’s forensic lab, which has been plagued by scandal for years, didn’t have a protocol for setting up the machines correctly. Moreover, it could not show that it was following “scientifically sound methodology.”

Meanwhile, over 13,000 DUI convictions in New Jersey were found to have been based on machines that were never set up properly. The machines require calibration against known breath samples of various alcohol concentrations – a process that can take up to an hour per machine. New Jersey apparently didn’t bother, meaning the test results were all invalid.

The Times found similar problems in Minnesota, Colorado, Washington State, New York, Washington, D.C., and other jurisdictions around the country.

Defense attorneys rarely allowed to challenge the machines

For decades, criminal defense attorneys around the nation have argued that the reliability of breathalyzer-style tests depends on proper setup and maintenance, which includes routine recalibration. Yet courts have not routinely allowed the defense to examine the details of how the machines work. All too often, the manufacturers claim that allowing that would expose critical trade secrets.

But knowing how the machine works – and exactly what setup and maintenance tasks are necessary – can be crucial to providing a sound defense. And criminal defendants have the right to argue their most effective defense.

Considering the Times’ revelations and the cases being dismissed around the country, now is the time for defense attorneys to have access to these machines and their software.

No one should be convicted of DUI based on exaggerated breath test results. If you suspect your breath test was inaccurate, contact an experienced criminal defense attorney right away.