Intoxilyzer 5000 Weaknesses
[The following information is provided by Edward A. Loss with the express permission of William C. Head and Headlines Marketing, Atlanta, GA copyright 2004]
188.8.131.52. Weaknesses of the Intoxilyzer 5000
Virtually every state in the Union has meaningful, published guidelines for the maintenance, upkeep, and verification for reliability and linearity of breath testing equipment used by their respective state police departments. Not Georgia, however. Through a back room deal, the GBI sneaked through the passage of O.C.G.A. 35-3-155 in 1998, which EXCUSES the GBI from being accountable to the citizens of Georgia for the upkeep and maintenance of our breath testing devices.In Arizona, it's not much better. Here, the state is literally in bed with the machine's manufacturer, C.M.I. Inc., of Owensboro, Kentucky. Here, C.M.I.'s State Representative is married to a woman who works for the Arizona Department of Public Safety Crime Lab - The very organization that decides what machines will be purchased for use by the Arizona State Police!"Honey, while you're up will you get me a drink of water and State approval for fifty more of my machines ...?"
The patently obvious constitutional challenges that this conjures up are enormous.
(1) The slope detector of this machine can be fooled by utilizing a slow, steady blow into the collection tube. In a demonstration conducted in Nevada on February 3, 1995, at the National DWI seminar of the Minnesota Society for Criminal Justice (MSCJ), Dr. Richard E. Jensen obtained a readout of 0.472 for a subject whose actual BAC level was approximately 0.06 grams percent, who had swished Scotch whiskey in his mouth. The slope detector DID NOT WORK.
At an Intoxilyzer 5000 training program in Atlanta in October 1996, defense attorneys tested the slope detector. In one test, an Atlantaarea attorney whose BAC was approximately 0.15 gave a reading of 0.72 and 0.76 on an Intoxilyzer 5000 operating in the twodigit mode. (This machine had no "RANGE EXCEEDED" governor in its software.)
(2) The air blank portion of the machine always reads 0.000, regardless of whether the ambient air sample has alcohol or other volatile chemicals (e.g., from paint fumes or solvents) in it. At the MSCJ National DWI seminar on February 3, 1995, this was proven. An attorney (who had been moderately drinking) blew into the collection tube for the 5000. His BAC level was approximately 0.06. Then, the machine's port for air blank intake was exposed to an open glass of Scotch whiskey during the air blank sample. During the air blank mode (mode A), it read 0.000. Then, the same attorney (three minutes later) blew into the machine again, rendering a 0.000 result! The machine did not report any type of malfunction or indicate alcohol in the sample chamber!
The machine was malfunctioning, but gave a false test result without alerting the operator to the problem. Because the ambient air detector caused the baseline to go to "0.000," the 0.06 reading was reported as a false negative and therefore gave a ZERO reading.
It is, of course, great solace to an Accused in Arizona to know that the DHS regulations require the machine be “capable of testing a breath sample which results in an alcohol concentration of less than .01 grams per 210 liters of breath when alcohol free subjects are tested.” DHS R9-14-403(B)(3). Furthermore, during the Tinnaco-Zimmer litigation in the Phoenix Municipal Court in 1998, it was shown that the Intoxilyzer 5000 will show a "0" ambient air concentration in its sample chamber with up to .019 grams of Ethanol remaining in the same chamber from e.g., the last subject tested. This means that if you are the next subject tested and you gave an actual breath alcohol concentration of .062 (a reading UNDER the legal limit), the machine will erroneously add the ambient .019 grams of Ethanol remaining in the sample chamber to your test resulting in a .081 (a reading OVER the legal limit)!
(3) Despite the five·filter series being used, the machine is still non·specific for ethanol. With five filters, it is (theoretically) one of the better AMERICAN·made machines available, but all American infrared machines are prone to the same shortcoming.
When combined with the State's refusal to install computer modem lines or to require periodic downloading of test data to assure that all tests are being accounted for, a test subject would never know for certain whether or not an errant "readout" had been obtained. Because the machine is designed to allow the collection and retention of each breath sample (at a cost of +/- $1.00), the State could provide a means of verifying the accuracy of each test via gas chromatography analysis. Several states, including the State of Colorado, have equipped their Intoxilyzer 5000 (model 768) with a sample collection apparatus. Every suspect's breath is "trapped," so that later independent analysis by an alternative method (i.e., gas chromatography) is possible. Plus, the State has no meaningful protocol or rules in place whereby the machine MUST be checked against these other chemicals to assure that all common interfering chemicals CAN be detected.
(4) The State's failure to purchase a version of the 5000 that can check and report the volume/rate of breath sample of the subject creates doubt about any alleged refusal on the machine. This machine is available with a thermistor, rather than a balky and unreliable pressure switch, yet Georgia opted not to purchase it. No "scientific" procedure or servicing test is used to verify the Intoxilyzer 5000's ability to accept a sample from a person with low·to·average lung capacity. When a person makes an effort to blow (as evidenced by puffed cheeks and getting red in the face) a strong argument to exclude evidence of a refusal can be made. See Department of Public Safety v. Orr, 122 Ga. App. 439, 177 S.E.2d 164 (1970) and Burson v. Collier, 226 Ga. 427, 175 S.E.2d 660 (1970). An example of the unfairness of use of a machine without this equipment can be seen in Thomas v. State, 226 Ga. App. 1, 485 S.E.2d 246 (1997), where the defendant tried twice to "blow" a sufficient sample, and then offered to have a blood test, only to be written up as "refusal." See also Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).
Georgia has begun replacing ALL 68-00 machines with "new" EN (serial numbers begin "68-01") machines . These machines allow for measurement of the subject's volume of air flow to help determine whether the subject is truly trying to "blow" a sufficient sample.
(5) The Intoxilyzer 5000 has an accepted 0.010 margin of error, plus or minus. (See copies of Intoxilyzer manuals in Appendix 1.) Any claims by the GBI "experts" that the devices have a margin of error of 0.005 is pure poppycock. This "number" relates to the Intoxilyzer's ability to get two samples from a simulator (a jar of heated alcohol and water) not a HUMAN BEING. The Court of Appeals appears to have "accepted" this as accurate. Campbell v. State, 248 Ga.App. 162, 545 S.E.2d 6 (2001). However, in Scheipers v. State, 234 Ga. App. 112, 505 S.E.2d 835 (1998), the court held that the margin of error relates to the weight rather than the admissibility of the breath test results.
(6) CMI has made many changes in its software and machine configuration in recent years. Often, these changes are hastily sent to users without adequate pre·testing to assure that it works in all applications. This was highlighted in Georgia when the original software would not accept a second "blow" on most attempts by subjects, and CMI changed the software. No new regulations or hearings were held on the propriety of this significant change in the "brain" of the 5000, pursuant to the Administrative Procedure Act; yet, the "guts" of the machine have been changed.
With decent regulations and rules, this lack of meaningful testing protocol would operate to void or place in doubt all breath tests on the 5000. However, Georgia's appellate courts have had a dismal history when it comes to reviewing due process claims against the State's breath machines. Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991); State v. Richardson, 186 Ga. App. 888, 368 S.E.2d 825 (1988); Magher v. State, 199 Ga. App. 508, 405 S.E.2d 327 (1991); Blanos v. State, 192 Ga. App. 835, 386 S.E.2d 714 (1989); Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986); Oxley v. State, 210 Ga. App. 296, 435 S.E.2d 705 (1993).
Other states have shown a more enlightened approach to this subject and have suppressed all breath machine tests where proper procedure was not followed. State v. Flood, 523 So.2d 1180 (Fla. App. 1988); State v. Wilson, 116 Idaho 771, 780 P.2d 93 (1989); Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986).
(7) In a state utilizing meaningful regulations, fair rulings can come from judges who do not fear "offending" the state agency sponsoring the Intoxilyzer 5000. In one recent Florida decision in which Intoxilyzer 5000 breath tests were excluded in numerous cases due to a FRAUDULENT protocol for collecting breath test samples, the judge wrote as follows:
"[T]he administration of the test (Intoxilyzer 5000) according to these parameters [i.e. the testing officer encouraging the person to keep blowing well past the time that an adequate sample had already been obtained by the machine] becomes not just a fraud on the individual but a fraud on the population at large." State v. Donald Herring, Case No. 024093 (14th Judicial Circuit, on appeal from Bay County, May 19, 2003).
Prior cases have held that the denial of pre·trial access to a breath machine does not constitute a violation of the Sixth Amendment right of confrontation. Confrontation in a criminal trial really means the right to ask questions and secure answers from the witness confronted. Kuptz v. State, 179 Ga. App. 150, 345 S.E.2d 670 (1986). Denial of a pre·trial motion for access to a breath testing device is harmless and was no basis for reversal under O.C.G.A. § 40-6-391(a)(1). Gilbert v. State, 262 Ga. 840, 426 S.E.2d 155 (1993).
These cases, however, were decided under pre·HB 610 law. Georgia's new statutes pertaining to "foundational" requirements for all evidential tests for chemical sobriety offer far greater protection to the accused. See O.C.G.A. § 40-6-392. Hence, new challenges and motions to gain access to the Intoxilyzer 5000 should be considered.
(8) The machines are too sophisticated to be repaired locally, and this results in maintenance being neglected or having needed maintenance delayed. The old Intoximeter 3000 machines could be completely disassembled by the area supervisors and virtually any repair could be made in the field. By contrast, South Carolina's Datamaster machines are all linked by computer modem to S.L.E.D. (State Law Enforcement Division) in Columbia, and can be diagnosed by phone, and often "repaired" by clearing and resetting a computer component over the phone line, without on·site repair. Likewise, the factory can make other repairs from the factory in Ohio via phone line.
[Mr. Head is nationally known for his extensive training and research on the flaws of the Intoxilyzer 5000. Since 1995, He has lectured more than 1200 criminal defense attorneys on his "50 Ways to Beat The Intoxilyzer 5000". Since 1995, numerous states have either discontinued use of the Intoxilyzer 5000, or are planning to replace the device with a more modern breath-testing device. A few of the states to have made this decision are Alabama, Mississippi, Florida, New York, Massachusetts, Wisconsin and several others.
Mr. Loss is one of only two Arizona DUI Defense Lawyers who Mr. Head has invited to participate in the highly regarded www.drunkdrivingdefense.com.
This short excerpt is taken from Mr. Head's book, The Georgia DUI Trial Practice Manual, 3rd Edition, Thomson-West, ©2004.