Lawyer challenges legality of Breathalyzer tests

By REBECCA ANNA STOIL
Dozens of people who have had their licenses suspended for drunk driving may have those decisions reversed, says Tel Aviv attorney David Kolker, who claims the Breathalyzer tests used by police are illegal. Kolker represents defendants in cases where both drivers' licenses and the vehicles' registration have been suspended after Breathalyzer tests indicated that the driver was driving while intoxicated. Kolker argues that the current Breathalyzer instrument, the "Yanshuf," was never approved by the Transportation and Health ministries as required by law. Furthermore, the zeroing procedures outlined by law for the Yanshuf are never carried out as proscribed, Kolker says. Last week, Kolker filed two civil suits in the Tel Aviv Magistrate's Court against former police chief insp.-gen. (ret.) Moshe Karadi and officers in the police's Traffic Division, claiming financial damages as a result of use of the Yanshuf. He also warned Karadi's successor, Insp.-Gen. David Cohen, that he would face personal suits if he did not stop the use of the instrument. "The police are using illegal instruments and operating them illegally, and this is, to my understanding, slipshoddiness and an enormous public scandal that means hundreds of drivers are being tried against the law and that, sooner or later, the matter will be exposed," Kolker said. A law passed in December 2005 authorizes police to use the Yanshuf without any prior suspicion, but only after its use was approved by the transportation minister in consultation with the health minister. Although the previous Breathalyzer device was okayed by the ministers, the Yanshuf was never approved. Another problem, Kolker says, is amendment 169z, which mandates that the device be zeroed "on site" prior to use. These zeroing tests - a "free air" test and a test using a known quantity of alcohol - are currently carried out once every 24 hours, in accordance with the manual distributed by the police. Kolker argues that "on site" means that the instrument must be tested prior to each use, and that the police manual intentionally ignores this legal requirement. Police, in turn, argue - and have been supported by most court rulings - that their once-a-day checks are sufficient. Kolker's claims have met with mixed reactions from the courts, at best. On May 7, Kolker convinced Tel Aviv Traffic Court Judge Shlomo Isaacson to overturn the suspension of a driver whose license was taken after a Breathalyzer found him to be intoxicated. The driver claimed that he had only drunk three bottles of beer. The police wrote in their report that the driver's stance was unstable, his behavior was "wild," and that he was unable to walk in a straight line. Isaacson ruled that there was no doubt that the Yanshuf was not carried out according to the law, and that the prosecution was aware of this. Nevertheless, he wrote that the fact that the instrument had not been approved by the appropriate ministries "did not completely negate the effectiveness of the instrument's ability to measure intoxication." Isaacson ruled that the defendant's license should be returned in light of the petitioner's "almost incidentless" 13-year driving record. But less than two weeks later, a Tel Aviv District Court ruling disputed the claim that the use of the instrument was illegal. "If there were any sort of a technical error in the test, one would have to present the error prior to the first evaluation through the use of an expert witness, to convince the court that the checks" were inaccurate, wrote District Court Judge Oded Mudrich. "I will emphasize that it seems that the police have declared war on drunk drivers or driving under the influence of alcohol. They must be congratulated on this, in light of what is transpiring on the country's roads. I am concerned that shortening the period of suspension under circumstances in which there was good evidence as to the level of alcohol in the driver's blood could weaken their hands," Mudrich wrote in his decision.