Prosecutors in Pennsylvania and in Vermont are notifying hundreds of convicted DUI defendants of defects in the calibration or maintenance of DUI breath test equipment that likely casts reasonable doubt on guilt. In Philadelphia, the county district attorney announced that 1500 men and women convicted between September and November of 2009 will receive new trials because four of the eight Intoxilyzer breath test machines used in DUI arrests were not properly calibrated.
In Vermont, both the Intoxilyzer software and the equipment maintenance are at issue, possibly invalidating hundreds of convictions dating back to 2008.
Breath analyzing equipment – similar to what the police use here in Georgia – shines infrared light on a sample of exhaled air to test for the presence of alcohol. Like all mechanical devices, however, Intoxilyzer machines must be maintained and properly calibrated on a regular basis to insure accurate readings.
DUI defense attorneys have the right to inspect calibration and maintenance reports for irregularities. Sometimes issues arise based on what the reports show and sometimes the absence of a report indicates a problem.
Issues like these breath test machine problems illustrate why an experienced DUI defense lawyer can be extremely helpful even if you had been drinking prior to your arrest. Just because the breath machine reads that you were over the legal limit does not make it so.
Filed under breathalyzer, Intoxilyzer 5000 issues by 
Joshua Topolsky of the Engaget blog reports that the Minnesota Supreme Court will hear arguments about whether the State of Minnesota and/or the manufacturer of the Intoxilyzer 5000 machine must turn over the soruce code that operates the Intoxilyzer equipment. In discovery motions, the defense had demanded the source code but both the State of Minnesota and manufactgurer CMI corporation have refused to release the code.
Lower courts in Minnesota and elsewhere have dismissed charges in DUI cases because the source code was not released, although other courts have refused to dismiss cases on this basis. Now, it appears that the Minnesota Supreme Court will be making law on this subject – a hearing is scheduled for September 19th.
Has anyone had any success with the "source code" argument here in Georgia? If so, write us with the details.
[tags] source code, breathalyzer, intoxilyzer [/tags]
Filed under breathalyzer, DUI discovery motion by
California DUI defense lawyer Lawrence Taylor cites several fascinating studies in his DUI blog suggesting that how you breathe can dramatically impact the blood alcohol reading generated by a breath test. For example, holding your breath for 30 seconds increased the blood alcohol content of your breath by over 15%. Hyperventilating for 20 seconds decreased the BAC by 10%.
In his post about breathing and breath tests, Attorney Taylor also cites a research study by a University of Washington Professor of Physiology who found that the last part of your exhalation has a higher alcoholic content than the first part, meaning that a police officer’s command to “blow harder” may very well result in a higher BAC reading on the breath test.
Georgia Courts have long rules that arrest scene breath tests are not admissable evidence. Mr. Taylor explains the science behind the reasons breath tests are flawed in another post on his blog. It would be interesting to know the psychological impact that a failed breath test has on a defendant’s subsequent decisions to admit to alcoholic consumption or to not assert his other available rights.
Filed under Arrest issues, breathalyzer, breathing techniques by
