Once Again, Intoxilyzers are Under Fire
In court battles played out across the country, breathalyzer tests are used again and again to send people to jail, take away their driving privileges, and impose huge fines. More and more, however, we are learning that these little machines shouldn’t have the final say.
According to The Newspaper, in Fairfax County recently a defense attorney brought the commonly used Intoxilyzer 5000 to the attention of the court for its potential malfunctions and unreliability. When counties use machines that are nearly ten years old, there is a good chance that parts have been replaced.
In the particular machine involved in this case, the chopper motor had been replaced. While replacing car parts might not be a big deal, parts in different breathalyzers aren’t as easily substituted. A new chopper motor can throw off the reliability of the whole machine.
Interestingly the manufacture of the Intoxilyzer has up until this point refused to reveal the source code used in programming the machines. They contend it is a “trade secret”, making a further mess of many DUI convictions and trials. Without knowing for certain how effective these ancient machines are we continue to send people through the justice system that may be otherwise acquitted.
The Farifax County judge agreed to allow tests to be ran on the machine to prove effectiveness. Before this could happen, however, the prosecutor offered the defendant a sweet plea agreement allowing him to keep his license and avoid jail time.
One of these days the veil of secrecy surrounding these machines will be dropped and it is likely that some will be surprised at the rate of errors. Until that time, when facing DUI charges involving a breathalyzer test, an experienced DUI defense attorney is the key to getting the best possible results.
I am a Huge supporter of the use of breathalzyers as a measurement device to get drunk drivers off of the roads.
BUT it is absolutely VITAL that the devices used by law enforcement be properly calibrated, kept in good condition, and replaced when too old.
This is why the message you provide here is so important! I have read time and time again about the Intoxilyzer 5000 being old and unreliable.
People arrested for DUI need quality representation. And they need to be aware that these machines in particular do frequently have issues.
Agreed, Allen. It’s all about fairness. It isn’t fair if the dependent can’t challenge the evidence against him or her, because it is encased in a “secret magic box”. That is not justice!
As long as a judge or jury can examine both sides of the evidence and hear competing arguments, then everyone can at least agree that the process was fair.
Contrary to popular belief, a breathalyzer does not directly measure blood alcohol. Instead, it reads the alcohol in the person’s breath and uses a computer program to extrapolate the breath alcohol reading into a blood alcohol reading. Consequently, it seems to me that this computer program (the “source code”) should be made available to DUI defense lawyers.
It is axiomatic that discovery rules require the disclosure or relevant evidence or that which would lead to such evidence. Here, there can be little dispute that the programming of the breathalyzer is discoverable. This information should be produced, perhaps subject to a protective order, to allow defense experts to determine whether the breathalyzer accurately measures blood alcohol.
It should be of no consequence that a third party possesses the source code. The breathalyzer is being used by the state in DUI prosecutions. The state, therefore, should be required to obtain the source code as part of its contract with CMI, the manufacturer of the Intoxalyzer.
Attorney Brian E. Simoneau
Mass. DUI Lawyer
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