Chicago DUI lawyer comments on breath testing machines being thrown out of courts

This Chicago DUI lawyer has posted here, here, and here about breath testing machines. Now comes word that one of the most used models of breath testing machines does not meet scientfic standards of accuracy.

September 20, Sarasota, FL

The breath-alcohol tests used for years to help convict tens of thousands of DUI defendants across the state might not have been as reliable as prosecutors portrayed.

Two top experts have said that the Intoxilyzer 5000 breath-test machines -- used for about two decades before the state changed to updated machines in 2006 -- could not meet today's scientific requirements for ensuring accurate results.

The Intoxilyzer 5000 was only checked once a month to see if the machine was working properly. The state's newest machine, the Intoxilyzer 8000, runs two control tests during every alcohol breath test -- one right before and one right after.

The testimony of those experts means prosecutors cannot present the Intoxilyzer 5000 breath tests in court in the small number of remaining cases where that older machine was used.

As a result, dozens of DUI defendants in Sarasota and Manatee counties have had charges dropped or reduced to reckless driving.

Prosecutors say the Intoxilyzer 5000 machines were reliable, even if the scientific community now calls for better safeguards to make sure the machine is accurate.

But defense attorneys say it is scary to think people might have been convinced to plead guilty, or lost their driver's licenses, based on a test whose reliability is now in question.

"Those machines were paraded into court as the gospel, and we now know it wasn't," said Venice attorney Robert Harrison, who has led the fight for years against the machines. "It's sad it came to this in the sunset of its life."

About 70 times each month in Florida, the new Intoxilyzer 8000 rejects a breath test because the control tests were not acceptable, Sarasota defense attorney Derek Byrd said.

"If that happens 70 times a month on a newer, better machine, just by sheer logic you know on the 5000 it was happening there too," Byrd said. "You know people were blowing into a machine that there were problems with the results."

"Just because the process doesn't meet the ideas of the general scientific community doesn't mean it's not reliable," said Assistant State Attorney Cliff Ramey, the supervisor of the misdemeanor division in Sarasota County.

But Ramey said the expert opinions now prevent them from introducing the Intoxilyzer 5000 breath test results in court.

Prosecutors can still pursue DUI charges without breath tests. Without a test, however, they must depend on testimony from officers or videos of the driver.

Ramey said his office is still prosecuting cases where they cannot use the results from Intoxilyzer 5000, but had to dismiss some of the cases since they date back to 2003 and officers have no memory of the case.

The question about whether the results of the Intoxilyzer 5000 were scientifically credible came up during the ongoing battle about the computer code that runs the machines.

Defense attorneys in about 450 DUI cases questioned the reliability of the machines, and judges have ruled that the defendants should have access to the computer code inside the Intoxilyzer 5000 and 8000.

After the manufacturer declined to disclose the code, county judges ruled prosecutors would only be able to introduce the results if they proved it was scientifically accurate.

Interesting, the same prosecutor that wants you to rely on "science" of the breath testing machine now says the machine is reliable even if the scientific community disagrees. I thought the prosecutor was a lawyer, not a scientist.