Update: 1/23/17: The school committee here in Dracut, MA is the latest to consider alcohol detection devices to require admission to their high school prom. The issue of alcohol testing is to be addressed at an upcoming school committee meeting.
Key issues that parents should be concerned about:
- How reliable are these commercial passive alcohol detection devices for which the school is considering paying $700?
- What types of substances might create a false positive? Chewing gum? Breath mints? Mouthwash?
- What due process is available to students (and parents) who believe they were unfairly accused of having consumed alcohol.
If a student can potentially be punished (according to the student handbook) with a suspension or other serious issue, they need to have the right to contest the evidence against them.
Every spring is prom season, which usually with it more well-meaning, but ill-considered attempts to stop prom attendees from drinking. Of course, high schoolers should not be drinking. And they DEFINITELY shouldn’t be drinking and then driving.
But according to prominent Attorney Russell Matson, who concentrates his practice in drunk driving defense, this is an inappropriate use of these devices.
“These portable breath test devices that can be purchased on the internet for $100 are so notoriously inaccurate that they are completely inadmissible as evidence in Massachusetts courts”, Matson said.
These machines aren’t calibrated or certified in any way, and there is simply no evidence that they are at all helpful in determining if someone has consumed alcohol. And if the state has determined they are inadmissible as evidence in court, you should consider how much faith to place in these readings.
Should Parents be Worried About Their Kids Being Breath Tested At a School Dance or Sporting Event?
Yes, they should. There are a number of consequences that can’t be undone if your child is accused of having consumed alcohol.
- There is a high likelihood of false positives when trying to detect alcohol at a “zero tolerance” level.
- Consequences could be school suspensions, often without any opportunity to challenge that determination. Is there a way to formally dispute the findings in a hearing or other process?
- Suspensions can result in loss of scholarships or other serious negative consequences.
Portable Breathalyzers Give False Positives At Low Alcohol Levels
In my drunk driving defense practice, I’ve come across many different ways to induce a false positive response from these devices, including using mouthwash, eating mints like Certs or Altoids, and even eating certain types of bread. There are also a number of medical & stomach conditions that can also trigger a response. There have also been cases where breath test machines can mistakenly indicate alcohol consumption in someone who is on a high protein diet.
The only machines that are certified for evidentiary purposes in Massachusetts are large machines that are primarily operated at police stations by officers with extensive training. And even then, they are only scientifically rated to detect alcohol over .08% at +/- .02% accuracy. Machines must be regularly re-calibrated, and operators require very specific training.
If students could be banned or disciplined for low levels of alcohol, that would be unfair both in terms of scientific validity and due process.
It would be absolutely unfair and wrong for any student to be subjected to any disciplinary action from the school based on evidence from a device with no scientific accuracy or legal legitimacy.
What about Passive Alcohol Sensors?
There are new technologies coming online all the time to detect alcohol consumption. Passive alcohol sensors (PAS) are devices that some police officers carry that don’t require the person to blow into a device or consent to be tested. They supposedly can detect alcohol in the ambient air after it is expelled from a person’s breath.
The science of these devices is unproven, and again, shouldn’t be relied on in court, especially in zero tolerance cases, where the devices are allegedly detecting alcohol consumption at the equivalent of .04% or even .02% BAC. When you are trying to identify low levels of alcohol consumption, the tests need to be MORE rock solid and scientifically rigorous, since false positives would be much easier to come by.
Activists have long hoped that automakers could install passive alcohol sensing devices into cars that either detect alcohol in the air or even through the skin by touching the steering wheel and disabling the vehicle if alcohol has been detected. These technologies haven’t been deployed or proven to work as yet, but it could happen in the next few years. And such devices would have even more serious considerations about how that information is used, access to data, contesting the findings, and due process under the law.
What should I do if my school is thinking about using a breath test machine at a school event?
- Ask about the specific device being used. What is it’s tested accuracy in detecting low-levels of alcohol, what is the tested rate of false positives, and what are the triggers for false positives? No device is perfect, they all have limitations and weaknesses. And if no one has answers for this, be very skeptical.
- What are the penalties for failing the test? Are you kicked out of the prom or the football game? Are you suspended from school? Other punishments?
- What are the remedies? Is there a due process mechanism? Can the failure be appealed?
Of course, no one wants their kids to be drinking, and particularly if they could get behind the wheel while drunk. It certainly makes sense for someone with professional experiences to monitor kids behavior.
And if someone is visibly drunk, and smells of booze, that is a serious situation for a teen. Which is why the DUI laws for underage drivers are tougher, and rightly so.
But to rely only on a single, highly fallible testing device with no other evidence, and that could result in significant consequences for an accused kid, is a huge mistake.
Fighting Back – Due Process and Probable Cause
Some towns have rescinded plans to breath-test all students when criticized. That’s what happened in Minnesota when the local ACLU correctly pointed out the Unconstitutional nature of “imply[ing] that students are guilty until proven innocent instead of innocent until proven guilty”.
Of course, schools don’t always have the same standards of probable cause as the government does for private citizens. Some schools have policies that allow searches of individuals or lockers on school property, and some require “reasonable suspicion”.
In a Florida case Ziegler v. Martin County School District, the Federal court ruled that the breath test for students did not violate their 4th Amendment rights. I disagree with this decision, but regardless of whether this is legally allowable, it remains terrible policy, for all of the reasons outlined above.
And it absolutely sends the wrong message that it is ok to assume everyone is a subject of suspicion at all times. That is not how our country is supposed to work.
Update: 8/1/16: An appeals court ruled that breath tests for students going to prom are reasonable, but you cannot be detained unreasonably.
For more information about issues with breath alcohol tests, or other related legal issues, contact Attorney Russell Matson at (781) 380-7730.