Breathalyzer measurement errors can be crucial in drunk driving cases in Poland, especially when the test result is on the borderline between alcohol consumption and sobriety, which can determine whether or not you are liable for the offense under Polish law.
Have you been accused of driving under the influence of alcohol in Poland, but the breathalyzer test result was around the acceptable limits? Are you wondering if you have a chance of being acquitted under Polish law? In this article, we present possible lines of defense in cases involving offenses under Article 87 § 1 of the Polish Code of Misdemeanors and explain when a breathalyzer result can be challenged in misdemeanor proceedings.
We also point out what other procedural shortcomings you can use to your advantage, what role an expert opinion plays in Polish courts, and what errors in its preparation can be effectively challenged by a Polish defense attorney.
Driving under the influence of alcohol – when is it an offense?
According to Article 87 of the Code of Misdemeanors, anyone who, while under the influence of alcohol or a similarly acting substance, drives a motor vehicle on land, water, or in the air, is subject to imprisonment or a fine of not less than PLN 2,500.
Being under the influence of alcohol means a state in which:
- he blood alcohol concentration is between 0.2 and 0.5 per mille, or
- the presence of alcohol in exhaled air is between 0.1 mg and 0.25 mg of
alcohol per 1 dm3.
Consequently, measurements below the thresholds indicated above do not constitute grounds for administrative (or criminal) liability. A state between the thresholds will result in administrative liability, and exceeding the above standards will result in criminal (rather than administrative) liability.
Can a breathalyzer result in Poland be invalid? Formal errors and effective defense
In misdemeanor cases related to driving under the influence of alcohol in Poland, it appears that in most cases, the reliability of the breathalyzer test is of key importance to the driver. In our experience, the most common errors that can lead to the results of the test being questioned are as follows.
Invalid breathalyzer calibration certificate
How does Polish police breathalyzer calibration work? Every measuring device used by the Polish police to verify sobriety must have a valid calibration certificate. The calibration certificate confirms that the device has undergone a calibration procedure in accordance with the requirements specified by the Polish Central Office of Measures (or another authorized entity) and that its readings meet the criteria for accuracy and repeatability of measurements. Furthermore, it is also important that the calibration is carried out at the Polish Centre for Accreditation (PCA), i.e. the accreditation body that supervises and accredits laboratories and other entities in Poland, confirming their competence and compliance with specific standards.
The issue of how long the breathalyzer calibration certificate is valid is also important. Calibration is only valid for 6 months, regardless of the number of measurements performed.
In practice, this means that:
- the device was calibrated at the Polish Centre for Accreditation (PCA),
- the calibration was performed no earlier than 6 months prior to the test,
- the device was provided with a valid calibration certificate, including, among other things, the date of calibration, the period of validity, and the device identification (serial number).
The lack of a calibration certificate or its expiry (invalidity on the date of the test) should result in the reliability of the measurement being questioned. In such a case, the Polish defense attorney may effectively request that the measurement result be excluded from the evidence as incomplete or contrary to the rules of evidence. An invalid calibration certificate for a breathalyzer may therefore lead to acquittal in many cases, especially when there is no other evidence confirming the driver’s intoxication in Poland.
A practical example from case law:
“In the opinion of the Regional Court, it is certainly justified to state in the grounds for appeal that the District Court completely disregarded the evidence on p. 7, i.e. the ”calibration certificate,” which constitutes a violation of Article 410 of the Code of Criminal Procedure. In the opinion of the Regional Court, this was due to the Court’s negligence. This document shows that the calibration was performed on September 8, 2012, with the next test date on September 7, 2012, and the event took place on March 9, 2013. Therefore, there is no document in the case file confirming the efficiency of the device used to test the defendant for alcohol content, which raises doubts about the result of the breathalyzer test” (see: judgment of the Regional Court in Ostrołęka of August 28, 2013, file ref. no. II Ka 172/13).
Can the breathalyzer result be challenged in Polish court due to an invalid calibration certificate? In many cases, this may be possible, but an effective defense requires a thorough analysis of the evidence in the case.
Breathalyzer measurement uncertainty, breathalyzer result at the limit of the permissible level
Every measuring device has a so-called “measurement uncertainty,” i.e., the margin of error of the breathalyzer. In the case of breath analyzers, this can be as high as ± 0.03 mg/l. This means that with a breathalyzer result of, for example, 0.11 mg/l, the actual concentration could have been as low as 0.08 mg/l, which is below the threshold for an offense. In such a case, taking into account the margin of error, a breathalyzer result at the limit of the permissible level may indicate that the permissible alcohol concentration has not been exceeded, which should lead to the acquittal of the person tested. The margin of error of a breathalyzer can therefore be a key element of the facts of the case, which must be analyzed.
Doubts about the accuracy of breathalyzer measurements of alcohol in exhaled air are widely discussed in the case law of common courts, which confirms their impact on court judgments.
A practical example from Polish case law:
“In his opinion, the expert clearly stated that in reality, the error of the device used for the measurement, i.e., A.-Sensor IV CM, may be plus or minus 0.03 mg/l, therefore, even the result of 0.11 mg/l shown in the defendant during the second breathalyzer test is not a result indicating that the permissible threshold has been exceeded. In summary, expert witness J. K. indicated that the evidence contained in the case file does not provide grounds for concluding that the defendant M. R. exceeded the permissible threshold for alcohol content in exhaled air, i.e. 0.1 mg/l, on the day of the incident, due to the need to take into account the measurement error of the A. – Sensor plus or minus 0.03 mg/l. In the opinion of the Court, the expert’s opinion is clear, complete, and categorical, and was prepared in a reliable manner.” (judgment of the District Court for Warsaw-Mokotów in Warsaw, 8th Criminal Division, dated November 12, 2014, file ref. no. VIII W 896/14).
In the case in question, the Polich criminal court admitted evidence from the oral opinion of an expert in the field of breath analyzers, who confirmed that the Alco-Sensor IV CM device has a measurement error within ± 0.03 mg/l. The measurement uncertainty of the breathalyzer was therefore a key element of the facts examined by the court. Consequently, despite the result of 0.11 mg/l, taking into account the margin of error, the court could not unequivocally conclude that the statutory threshold for misdemeanor liability, which is 0.10 mg/l, had been exceeded.
A practical example from Polish case law:
“The toxicology expert appointed in this case stated in his opinion that it cannot be ruled out that the actual result of the defendant in the first test would be 0.11 mg/l or 0.09 mg/l, and therefore it cannot be ruled out that the alcohol concentration in the defendant’s breath was lower than 0.10 mg/l, assuming the uncertainty of the device’s measurement. It should be noted that, in the opinion of the Court, each of the above-mentioned values of alcohol concentration in exhaled air was, in fact, possible.” (see: judgment of the District Court for Warsaw-Śródmieście in Warsaw, 11th Criminal Division, of September 17, 2015, file ref. no. XI W 6653/14).
In this case, the court found that there was a significant, irremovable doubt as to whether one of the key prerequisites for misdemeanor liability under Article 87 § 1 of the Polish Polish Misdemeanor Code had been met, i.e., whether the defendant was actually under the influence of alcohol at the time of driving. In the absence of the possibility of unequivocally establishing this circumstance – with the expert confirming that the actual breathalyzer result could have been either 0.09 mg/l or 0.11 mg/l – the court, applying the principle of in dubio pro reo (Article 5 § 2 of the Polish Code of Criminal Procedure in conjunction with Article 8 of the Polish Code of Criminal Procedure), was obliged to resolve these doubts in favor of the defendant. Consequently, it found no grounds for attributing guilt and acquitted the defendant of the alleged offense.
The position presented in the above judgments is also confirmed in doctrine. As Prof. Ryszard A. Stefański notes: “accurate knowledge of measurement errors and consideration of measurement uncertainty can unequivocally determine whether the person tested has violated the law” (R. Stefański, Commentary on Article 87 of the Polish Code of Misdemeanors, point 3.5.9, Lex).
Consequently, ignoring the margin of error of a breathalyzer may lead to a violation of the presumption of innocence before Polish court and to the conviction of a person in whose case there are serious doubts as to whether they exceeded the permissible alcohol level. In such situations, a defense attorney in Poland should request not only evidence from the device’s operating instructions, but also, if possible, an expert opinion on breath alcohol measurements. The margin of error of a breathalyzer can have a crucial impact on the measurement result, and its inclusion in the analysis of evidence is critical to ensuring the fairness of the trial and protecting the rights of the accused.
In practice, this means that Polish law enforcement agencies and Polish courts should not only take into account the device’s readings, but also analyze the acceptable measurement error in each case, which may be crucial for the correct resolution of the case. In many cases, therefore, the breathalyzer result can be challenged, and a breathalyzer result at the acceptable level limit can be an effective line of defense. Our experience shows that not every court takes the device’s margin of error into account, which can lead to flawed judgments.
Lack of a printout from the alcohol concentration measuring device in the case file
The obligation to include a printout in the breathalyzer sobriety test report stems directly from § 7(1)(4) of the Regulation of the Minister of Health and the Minister of Internal Affairs and Administration of December 28, 2018, on testing for alcohol content in the body (hereinafter: “Regulation”). In accordance with the aforementioned Regulation, a report shall be drawn up for a test carried out with a breathalyzer indicating the presence of alcohol in the body of the person being tested, which shall contain the result of the breathalyzer measurement or measurements in digital form and the unit in which the breathalyzer result is expressed, and in the case of a test carried out exclusively with a breath analyzer not equipped with a digital display of the breathalyzer measurement result.
The absence of this element means that the report is incomplete, which may be grounds for questioning the reliability and credibility of the test.
In Polish court practice, such an omission is often raised by the defense as a formal error, which may result in the breathalyzer test evidence being disregarded or even the acquittal of the defendant if there is no other clear evidence of intoxication.
A practical example from Polish case law:
“The basis for the appeal was, among other things, the lack of a printout from the alcohol concentration measuring device in the case file (…) However, the court of first instance did not take any action to supplement the evidence with the indicated omission. (…) In the opinion of the Court of Appeal, in the circumstances of this particular case, the failure to examine key evidence in the form of a printout from a breathalyzer test, which would have allowed for the verification of both the defendant’s explanations and the testimony of witnesses, as well as impersonal material in the form of a breathalyzer test report, makes the objection raised in the appeal appear to be justified” (see: judgment of the Regional Court in Elbląg of January 24, 2023, file ref. no. VI Ka 550/22).
Failure to maintain the required time intervals between breathalyzer tests
Pursuant to § 3(3) of the Regulation, if the first measurement with a breathalyzer referred to in § 3(1)(2) is performed and the breathalyzer result is above 0.00 mg/dm3, a second measurement shall be performed after 15 minutes.
A similar position was adopted in the document “Principles for measuring alcohol concentration and issuing opinions on sobriety – Recommendations developed by the Institute of Forensic Expertise and approved by the Main Board of the Polish Society of Forensic Medicine and Criminology” of November 26, 2004. The document explains that: “Measurements should be taken at specific 15-minute intervals to exclude the influence of residual alcohol in the mouth and allow the blood alcohol level to stabilize.”
The instructions for measuring devices contain the same procedural recommendations, for example: the instructions for the Alco-Sensor IV CM 7111 device indicate that: “Each positive test should be confirmed by a second test after 15 minutes.”
Both legal regulations and medical-legal recommendations and device instructions are designed to ensure the reliability and repeatability of measurements. Failure to observe a 15-minute interval between tests may result in the results being deemed unreliable and unsuitable for use as evidence in a case.
In one of the cases we handled, the measurements taken by the police did not include any data on the date and time of the tests, which made them unverifiable and allowed them to be effectively challenged. In practice, it looked like this:
- test 03844 showed “01/01/00, 00:00,”,
- test 03845 indicated “01/01/00, 00:00”,
- test 03847 indicated “01/01/00, 00:00”.
Meanwhile, the breathalyzer manual clearly stated that each test should indicate the date and time of the test. As a result, it was impossible to determine and assess the reliability of any of the measurements or to verify whether the police officers performing the measurements had maintained a 15-minute interval between successive sobriety tests. Such procedural and technical errors led to the acquittal of the defendant.
Once again, the role of the Polish defense attorney in this type of situation is to point out to the court that the lack of proper documentation and the violation of the measurement procedure rules constitute serious irregularities that may have a crucial impact on the reliability of the evidence in the case. It is necessary to demand not only proof that the measurements were carried out in accordance with the procedures, but also that all measurement data were correctly recorded and secured, which is essential to ensure the reliability of the process.
Exhalation too short or uneven during a breathalyzer test
According to the opinion of the Polish Institute of Forensic Research referred to in the previous point, the exhalation time should be at least 3 seconds and the air volume at least 1.5 dm³.
When testing with a breath analyzer, it is not only the breathalyzer result that counts, but also the technical conditions under which it was obtained. Therefore, if the exhalation time was too short (i.e., less than 3 seconds), according to the device’s instructions for use, the breathalyzer result will be unreliable. It will present a qualitative rather than a quantitative value, which means that although the presence of alcohol in the exhaled air has been detected, it is impossible to determine its concentration accurately. This type of measurement should not allow for a conviction in Polish court.
Breathalyzer test at the wrong temperature
Few drivers are aware that the accuracy of the alcohol measurement in Poland performed by this device may depend on many variables, such as atmospheric conditions, including temperature, humidity, wind, precipitation, and other external factors. For example, according to the technical documentation for the Alco-Sensor IV CM 7111 device, accurate measurement is only possible within a strictly defined temperature range and under stable environmental conditions. If the measurement is carried out in conditions that deviate from the manufacturer’s recommended standards – for example, outdoors in winter, during rainfall, or in strong winds – a measurement error may occur, which in turn may lead to unjust legal consequences for the person being tested. For example:
“The Alco-Sensor IV exhibits maximum accuracy in the temperature range from 0 degrees Celsius to 40 degrees Celsius.” (source: Alco-Sensor IV CM 7111 user manual, p. 16).
Consequently, when the measurement is performed in winter, special attention should be paid to weather conditions. If it is confirmed that the air temperature at the time of the test was below 0°C, it should be assumed that the breath analyzer did not function in accordance with the manufacturer’s recommendations, which could have had a direct impact on its accuracy and the results of the breathalyzer measurement.
In such a situation, in order to confirm the impact of inappropriate weather conditions on the result, an opinion may be obtained during the court proceedings from a scientific institute, such as the Polish Institute of Meteorology and Water Management – National Research Institute.
The legal basis for this type of request will be Article 193 of the Polish Code of Criminal Procedure (CCP), according to which, if the determination of circumstances of significant importance for the resolution of a case requires special knowledge, the opinion of an expert or experts shall be sought. Such an opinion should concern the precise determination of atmospheric conditions—such as air temperature, air humidity, and cloud cover—at the place where the measurement was taken. Obtaining such an opinion will allow for a precise determination of whether the weather conditions affected the operation of the device and the measurement values shown, and, as a consequence, will constitute an element of the defendant’s defense, leading to a possible acquittal.
Errors made by experts in assessing a driver’s sobriety in Poland – how to prove them and challenge the expert’s opinion?
In order to make correct factual findings in a case where the assessment of the defendant’s sobriety at the time of the incident is of key importance, it is necessary to conduct a retrospective analysis of the alcohol concentration in the body. This type of examination, which by its nature requires specialist knowledge in the field of forensic toxicology, must be performed by a court expert or, in more complex cases, by a scientific institute. The legal basis for such action is the above-mentioned Article 193 § 1 of the Polish Code of Criminal Procedure.
Retrospective reconstruction of sobriety involves analyzing the processes of absorption and elimination of alcohol from the human body, taking into account the time of consumption, type of alcoholic beverage, body weight, and the results of measurements – both with a breathalyzer and in blood tests. The key condition for conducting such an analysis is to confirm that the person being tested was in the phase of eliminating alcohol from the body and that there was no so-called “overdrinking” – i.e., consumption of alcohol after the event and before the test.
Polish law penalizes driving “under the influence,” but not being under the influence itself. It is therefore crucial to determine whether the driver was in a state of intoxication or already intoxicated while driving.
Our experience shows that the most common errors in Polish expert opinions include:
- Failure to take into account the phase of alcohol metabolism – the expert assesses the state of sobriety without determining whether the defendant was in the phase of resorption (absorption) or elimination of alcohol. Retrospective analysis of sobriety is only possible in the elimination phase. Failure to take this condition into account may render the expert opinion useless.
- Failure to take into account the possibility of so-called “overdrinking” – the expert does not analyze whether the defendant consumed alcohol after the incident and before the test. “Overdrinking” completely excludes the possibility of preparing a reliable retrospective opinion, as it distorts the precise determination of the blood alcohol level at the time of the incident. In the case of consuming significant amounts of alcohol after the incident, as is the case with overdrinking, it is impossible to accurately assess whether the defendant was under the influence of alcohol, which may result in a lack of reliable grounds for issuing an unambiguous expert opinion.
- Lack of analysis of atmospheric conditions affecting the operation of the breathalyzer – the expert omits the fact that the device may have operated outside the temperature range specified in the manual (e.g., below 0°C), while atmospheric conditions have a significant impact on the accuracy of the measurement – e.g., at low temperatures, the breathalyzer result may be overestimated or underestimated.
- A declarative opinion, without calculations and methodologies – the expert presents his conclusions authoritatively “ex cathedra,” while he did not show step by step how he obtained the result. Such an opinion cannot be verified and violates the principle of adversarial proceedings and the right to defense.
- Use of outdated or unproven mathematical formulas – the expert uses formulas that are inadequate for current toxicological standards. This can lead to incorrect alcohol level results and incorrect reconstruction of the event.
- Failure to take into account the individual data of the person being tested – the expert does not take into account the weight, gender, height, health, or metabolic rate of the accused. The process of alcohol absorption and elimination is individual – omitting this data distorts the breathalyzer result.
- Opinion based on a single measurement – the expert does not refer to changes over time (e.g., only one breathalyzer measurement was taken without blood or subsequent measurements). The lack of a sequence of measurements makes it impossible to determine whether alcohol was still being absorbed or had already been eliminated.
- Non-compliance with national methodological recommendations – the expert does not refer to the recommendations in force in Poland, e.g. regulations or the “Methodological recommendations for assessing sobriety” of the National Police Headquarters and the Institute of Forensic Research. An opinion that contradicts national guidelines may be considered unreliable.
Summary – how to defend yourself against a charge under Article 87 of the Polish Misdemeanor Code?
The key principles of the Polish criminal process, contained in Article 8 of the Polish Code of Procedure in Misdemeanor Cases, are based on the principles set out in Article 5 § 1 and § 2 of the Polish Code of Criminal Procedure. First and foremost, these are the principle of presumption of innocence and the resulting principle of in dubio pro reo. According to the applicable procedure, it is not the defendant who has the burden of proving his innocence, but the prosecutor who is responsible for proving the defendant’s guilt. Proving guilt means presenting evidence that confirms the allegations beyond any doubt – both direct and indirect evidence.
Breathalyzer errors. Can a breathalyzer test result be invalidated?
Cases involving driving under the influence of alcohol in Poland are often based solely on the result of a breathalyzer test. If the test was conducted improperly and the breathalyzer result is at the limit of the acceptable standard, you have a real basis for an effective defense, and acquittal for driving under the influence of alcohol may be a real possibility. It is crucial that the Polish defense attorney examine the entire measurement process in detail, taking into account, among other things, the margin of error of the device and compliance with procedures, which may have a decisive impact on the outcome of the case.
In the case of an expert opinion, it is crucial that the Polish defense attorney pays close attention to any potential inaccuracies or errors in the methodology used by the expert. The expert should apply current standards and procedures for toxicological testing, and any non-compliance with applicable standards may be grounds for challenging their opinion. If the expert opinion contains irregularities, the defense attorney has a duty to demonstrate that the breath alcohol measurement result is unreliable or incomplete, which may lead to the acquittal of the defendant.
Remember that it is the prosecution in Poland that must prove your guilt beyond a reasonable doubt. Your task (and that of your defense attorney) is to show that such doubts exist—and that is enough for the court to acquit you. In many cases, acquittal for driving under the influence of alcohol may therefore be a realistic option.
What are the acquittal statistics in drunk driving cases in Poland in recent years?
Statistics on acquittals in drunk driving cases are not regularly published. However, according to data from selected courts and legal reports, acquittals most often occur when the breathalyzer result is close to the legal limit or when there are procedural errors in the testing. From our experience, such errors occur quite frequently, although of course the facts of each case must be assessed individually.
Is acquittal in Poland possible if other psychoactive substances are detected in the body?
Yes, but it requires a separate analysis. If other substances are detected, it is crucial to determine what they are, whether they affected the driver’s ability to operate the vehicle, and whether the tests were conducted properly. Criminal defense in Poland in such cases may rely, among other things, on an expert’s opinion.
How long does it take to challenge a breathalyzer result in court in Poland?
The duration of criminal proceedings in Poland depends on the complexity of the case and the number of evidentiary elements. In practice, in Poland cases concerning drunk driving offenses take from several months to several years if experts need to be appointed and opinions conducted.
Do regulations regarding the breathalyzer’s margin of error differ depending on the type of vehicle?
No. Regulations regarding blood alcohol concentration and measurement uncertainty in poland are uniform for all drivers of motor vehicles, regardless of the vehicle type.
Does the prosecutor always file an indictment in alcohol-related cases?
In Poland usually yes, especially if the alcohol concentration exceeds the legal limit or if an accident occurred. Therefore, it is crucial to thoroughly analyze the evidence at the preparatory stage (before the prosecutor), including breathalyzer test protocols, device calibration certificates, the circumstances of the measurement, and any doubts regarding the driver’s intoxication at the time of the incident. Such actions may allow the criminal defense in Poland to request discontinuation of proceedings or to limit charges before the case goes to court.
How can one utilize a defense in alcohol-related cases?
Each case is unique, but the key in such cases in Poland is a detailed examination of all evidence, including breathalyzer test protocols, device calibration documentation, timing and conditions of the measurements, and any other circumstances that could affect the reliability of the evidence. The defense may also engage toxicology experts to analyze the device’s margin of error, the driver’s alcohol metabolism phase, or the impact of weather conditions on the measurement, which can significantly strengthen the defense’s argument.
