Court Lowers Bar for DWIs

Doubts over accuracy of breathalyzer lead to change

The Jerusalem District Court yesterday lowered the bar for charging a driver with driving while intoxicated.

Scene of car accident on Highway 65 near the Megiddo Junction
Gil Eliyahu

The previous floor above which an indictment for drunk driving could be filed was set by a traffic court seven months ago at 400 micrograms of alcohol per liter of air on a breathalyzer test. In its ruling on an appeal against that verdict, the district court dropped the bar to 290 micrograms per liter of air.

The actual law defines a person as drunk if his breath, when exhaled into a breathalyzer, contains more than 240 micrograms of alcohol per liter of air. But doubts about the accuracy and reliability of the instrument led police to set an "enforcement bar" of 255 micrograms and only prosecute drivers whose breath showed an alcohol concentration above that level.

Last year, the lawyers of a driver whose breath contained 315 micrograms of alcohol brought expert witnesses to prove the breathalyzer could not be relied upon, and that a higher bar was needed to prove beyond a reasonable doubt that the breath of the accused did indeed contain more than the 240 micrograms of alcohol stipulated by law.

The traffic court accepted this argument, ruling that the unreliability of the breathalyzer left no choice but to raise the enforcement bar to 400 micrograms. The state then appealed, saying the extra bar set by the court was too strict to permit proper enforcement of the law and lacked scientific basis. The state said the enforcement bar should be set at 290 micrograms, and yesterday, the district court accepted this proposal.

Judges Noam Solberg, Yigal Marzel and David Mintz also decided to return the case in question to the traffic court for reconsideration in light of their ruling. They suggested that the parties reach a plea bargain to avoid taking the case back to court, but no such deal was concluded.