WI DUI: What is Certainty? What is Uncertainty? By Andrew Mishlove on September 06, 2011

In drunk driving cases, breath and blood test results are reported as a number. We are all familiar with the number: .08. This number is deceptive and unfair, because it fails to state a level of certainty. We have a number, but we do not know how accurate, precise or reliable it is.

In its report on the state of forensic science in the United States, the National Academy of Sciences recommended that all forensic measurements, such as blood test results, be reported with an “uncertainty budget.” That is, the number should be reported as, for example: .08, plus or minus .005 to a 95% degree of certainty.

Wisconsin DUI breath and blood testsIn this way, a judge or jury will, at least, have a basis to decide how much weight to give the number. Since the NAS report, skilled and knowledgeable DUI defense lawyers are demanding that the test results be reported with an uncertainty budget or that they not be allowed into evidence.

We are just at the beginning of this fight. And the forces that protect slipshod procedures in DUI prosecutions will fight back. In their world, it does not matter if the science is fair, accurate, precise or reliable. What matters to them are that people accused of DUI are convicted as cheaply, quickly and easily as possible.

My good friends and colleagues Ted Vosk, of Seattle, Washington, and Justin McShane, of Harrisburg, Pennsylvania, are the national leaders on this issue. At the Law Offices of Andrew Mishlove, we are following this very closely. We are studying the complex science of uncertainty budgets and maintaining communication with other lawyers across America who are preparing for this battle. We will be at the front lines.

The Wisconsin Legislature recently adopted the more stringent “Daubert” standard for the admission of scientific evidence in Wisconsin courts. It is unclear how this new standard will affect breath and blood test results and how the emerging concept of “uncertainty budgets” will fit into our new scheme of scientific evidence.

Related to This

Andrew Mishlove and Lauren Stuckert

Mishlove and Stuckert, LLC Attorneys at Law

Mishlove & Stuckert, LLC Attorneys at Law has been rated the #1 DUI law firm in the state by Wisconsin Law Journal Reader Rankings. Our DUI specialists have been highly rated by organizations including: 

  • Avvo™
  • Super Lawyers
  • Martindale-Hubbell 
  • Better Business Bureau 

To speak with one of our board-certified DUI defense specialists, request a consultation online or call us at (414) 332-3499.

Contact Us

"Mr. Mishlove was worth every penny and then some. I would consider him the Michelangelo of the DUI defense world.
He is professional, dedicated, and pours his heart into his job. I would give him 10 stars if I could."
Ronald S.

Rate, Review & Explore

Social Accounts Sprite
Google map image of our location in 4425 N Port Washington Rd Ste 110 Milwaukee, WI

Milwaukee Office

4425 N Port Washington Rd
Ste 110
Milwaukee, WI 53212

Open Today 24 hours

Google map image of our location in 125 Church Ave  Oshkosh, WI

Oshkosh Office

125 Church Ave
Oshkosh, WI 54901

Open Today 24 hours

Google map image of our location in 333 W Paradise Dr  West Bend, WI

West Bend Office

333 W Paradise Dr
West Bend, WI 53095

Open Today 24 hours

Google map image of our location in 1535 E Racine Ave  Waukesha, WI

Waukesha Office

1535 E Racine Ave
Waukesha, WI 53187

Open Today 24 hours

Which location would you prefer?

Tell us a bit about yourself...

(414) 332-3499 Send a message