A New Jersey court of appeals recently ruled that attorneys are not allowed to inspect photographs of the rooms where police perform breath tests. The case was prompted by a New Jersey attorney who claimed that he was entitled to inspect photographs of the breath test to ensure that there were no electronic devices present that may have tainted the test result. Electronic devices like cell phones or police radios that transmit radio frequencies have been shown to produce false positives in stationary breath test machines. A municipal court judge granted the requested inspection, which was rejected upon appeal. Balancing the rightful concerns of radio frequency interference and issues of security, the Appeals Court ruled that “in essence, [the attorney] was attempting to use the appeal to re-litigate the RFI [radio frequency interference] issue that was already addressed and resolved.” There is a New Jersey statute that prohibits the presence of any radio frequency emitting device in the presence of a state-administered breath test.

Currently, in Georgia, there is no statute or case law that specifically grants or prohibits access to photographs or videos of an individual taking a state-administered breath test. Though it is uncommon for attorneys to request such information, that does not make the New Jersey attorney’s line of defense any less valid. Essentially, as state-administered tests strive to become more accurate and take measures to deal with RFI, acetone interference, mouth-alcohol, clean initial air samples, and other possible inaccuracies, attorneys must question the presumptive quality of the technology. Forcing the state to confront the technological improprieties of state-administered tests is key to building new and innovative DUI defenses. When an individual’s livelihood rests on the results from a questionable state-administered BAC test, leaving questions of accuracy unanswered is only a further injustice.

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