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.
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I have previously written about on-going court challenges against CMI, the manufacturer of the Intoxilyzer breath test machine. DUI defense lawyers have long wanted to gain access to the Intoxilyzer source code in order to have it analyzed by independent programmers, biologists and phyicists.
My suspicion, which is shared by many DUI lawyers is that the Intoxilyzer’s internal calculations are based on calculations that assume a certain weight and size and sex of a defendant. If the readings are based on a 200 lb. male, then the machine can’t possible evaluate the blood alcohol level of a 98 lb. female.
CMI has long argued against turning over the source code, contending that the source code is proprietary information and that releasing it could damage or destroy its business model.
It appears to me that CMI may not have much of a choice. A judge in Sarasota County, Florida has levied a fine against CMI for stalling the prosecution of more than 100 cases. The fine is now over $500,000. CMI’s attorneys recently appeared before a 3 judge panel in Sarasota to argue that its source code is a trade secret.
CMI has already agreed to a "controlled viewing" of the source code that would bind all viewers to secrecy.
We will keep you posted as to developments in Florida. If CMI loses, I expect to see immediate challenges to Intoxilyzer testing here in Georgia.
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Defense lawyers frequently argue that tests used by the police to measure blood alcohol levels in women are flawed because most of these tests are calibrated using a “average” sized male and because there is some scientifice evidence that women metabolize alcohol differently than men.
Scientific studies in both Italy and in Cananda suggest that there are additional differences between alcohol metabolism that raise even more questions about the validity of the tests and the testing equipment used by police.
One of the more interesting findings of the Canadian study suggests that birth control pills produce an enzyme that most Breathalyzer test machines will interpret as blood alcohol content. You can read more about this study in an article entitled “Do DUI Laws Discriminate Against Women?”
If you use oral contraceptives, make sure to tell me so we can discuss whether this factor might be an element in your defense.
[tags] women and DUI, differences between men and women in DUI cases, birth control pills and DUI, georgia dui [/tags]
Filed under dui defense georgia, georgia dui lawyer, Intoxilyzer 5000 issues, Trial issues by
In a gesture of appreciation to his fellow criminal defense lawyers, Guy Sharpe has published his Motion for Full Information on the Intoxilyzer 5000. Guy states that he frequently receives calls about this Motion and he has released it to the DUI defense community as a “thank you” to the many DUI and criminal defense lawyers throughout the State who have generously shared their expertise with him.
This Motion is for the use of criminal defense lawyers only and carries with it no warranties or guarantees of any kind. Attorneys who use or modify this Motion do so at their own risk.
[tags] DUI Motion, Intoxilyzer 5000 discovery motion, Guy Sharpe [/tags]
I have heard about breath tests and blood tests and about an intoxilyzer test. What is the difference in these various tests and what is an Intoxilyzer?
Georgia uses the Intoxilyzer 5000 manufactured by CMI, Inc. It purports to measure the amount of alcohol in your blood by testing your breath, which is a stretch, in my opinion. The best way to determine the amount of alcohol in your blood is with a blood test, not a breath test. By the way, would you prefer to have a breath test on a machine that the manufacturer does not warranty to be fit for the purpose for which it was intended? That’s the kind of “no warranty” that comes with the machine. Always, ask for an independent test of your BLOOD, when given the opportunity. That will give the accurate reading of alcohol in your blood, not your breath.
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This is the first post for Guy Sharpe’s Georgia DUI defense blog. Your questions and comments are welcomed.
–Guy
Yes, lawyers and clients frequently refer cases to us.
Filed under Arrest issues, Blog, Georgia Courts, Intoxilyzer 5000 issues, lawyers, Police conduct issues, post, Pre-trial actions, Punishment issues, questions, refer, welcomed by
