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52 Gonz. L. Rev. 397 (2016-2017)
The Analytical Limitations of Modern Breath Alcohol Testing: A Call for Reform to Per Se Mandatory Sentencing Enhancement Schemes

handle is hein.journals/gonlr52 and id is 427 raw text is: THE ANALYTICAL LIMITATIONS OF MODERN BREATH ALCOHOL TESTING: A CALL FOR REFORM TO PER SE MANDATORY SENTENCING ENHANCEMENT SCHEMES Alex I. Uskoski*+ ABSTRACT The advent of modern breath alcohol testing devices has led to a fundamental shift in the methods used to detect and prosecute impaired drivers. And although these modern devices present a convenient and practical tool for use in the criminal justice system, this convenience often comes with the price of potentially inconsistent and frequently unreliable legal application. When a detailed examination of the scientific principles animating breath alcohol testing is undertaken, it is evident that there are significant analytical limitations associated with current breath testing practices which have the potential to preclude a fair and consistent adjudication for many defendants involved in the legal system. This article seeks to address some of those limitations and inconsistencies in the context of mandatory per se sentencing schemes for alcohol-related offenders. Overall, this article contends that while breath alcohol testing is an invaluable prosecutorial tool, the legal system has placed too much credence in breath testing results without a necessary consideration of the analytical variables associated with such results. This article argues that because of physiological and performance-related inconsistencies associated with modern breath testing methods, states should eliminate mandatory minimum sentencing enhancement schemes that are premised exclusively on threshold breath alcohol test results. Such results are certainly instrumental in prosecuting and sentencing DUI offenders, but these mandatory minimum sentencing schemes fail to consider both endogenous and exogenous test-related idiosyncrasies and may promote enhanced punishment based on variables unrelated to a relative diference in legal culpability. As an effective alternative to these mandatory schemes, this article concludes that states should embrace judicial sentencing discretion that can adequately consider the unique analytical circumstances of each defendant's case. 397

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