By on March 25, 2009

A Fairfax County, Virginia General District Court judge earlier this month backed away from driving under the influence of alcohol (DUI) charges filed against a motorist after a defense attorney cast doubt on the accuracy of the county’s breath testing machines. Police and courts often entrust machines like the ten-year-old Intoxilyzer 5000 with the authority to exonerate or convict a motorist of serious charges that carry significant monetary penalties, loss of license and jail time. Richmond DUI attorney Bob Battle found that this particular machine, which is being phased out in Virginia, has a significant weakness.


“When I got the records of the machine, it showed that one of the motors — it’s called a chopper motor — had been replaced,” Battle explained. “I found out that Virginia bought a bunch of replacement motors from random companies and they couldn’t even tell you what motor was in there… it’s very important what they are, and if they measure that the Ohms that they use, the frequency, is different than the original, it’s going to cause the whole contraption that is this Intoxilyzer 5000 to be inaccurate.”

Electrical engineer Thomas Workman, a former quality manager for Hewlett Packard, explained the importance of this particular motor to the Intoxilyzer 5000.

“If a replacement motor rotates at a faster RPM, then the processor may not have enough time to complete all the computations it must perform each revolution of the wheel (since there are more computations that must be done, since there are more revolutions of the wheel per unit of time),” Workman wrote. “Make the motor turn slower and the problem is that the software thinks that slopes are not being met when they should be, making the mouth alcohol detector faulty.”

Although the general principles behind the machine’s components are well known, the software used to generate the final calculation that determines guilt or innocence is held to be a “trade secret.” Manufacturer CMI Inc. has refused to disclose the source code that would allow an independent analysis of the device. The state Department of Forensic Science guidelines only recommend testing Intoxilyzer machine components with an oscilloscope — something the state has never done.

Presented with the evidence on the motor issue, the judge in the Fairfax County case agreed to allow experts to test the breath machine for accuracy. To avoid this, the prosecutor offered to reduce the DUI charge to reckless driving allowing the accused to keep his license — a deal too good to turn down. Battle believes one day the machine will eventually be tested.

“I sincerely believe it’s going to be like that scene from the Wizard of Oz,” Battle said. “Once they roll back that curtain, they’re going to find that this machine is not the perfect machine they try make it out to be — that this is an outdated contraption. That’s why Virginia, when they contracted for the new replacement machines, one of the conditions was that it couldn’t have this type of motor in it.”

In 2007 the General Assembly appropriated $1.8 million to replace the Intoxilyzer 5000. At the time lawmakers argued that replacement was necessary because machines like the Intoxilyzer were “dated, unstable and unreliable.”

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19 Comments on “VA Breathlyzers Under Fire...”


  • avatar
    gslippy

    It’s probably an infrared bench design. The chopper wheel speed would make a big difference, but I can’t see how anyone could substitute a different speed motor and expect it to even function.

    The motor supplier is not as important as the motor specifications that it was purchased against. This smells (!) a little like the defense is casting doubt on the machine’s performance simply because the manufacturer can’t tell exactly who produces the motor. I am doubtful of their claim, but that is the job of lawyers.

  • avatar
    tced2

    It is irresponsible for authorities to use any automated machine that measures speed, intoxication, running red lights that is not calibrated. The law needs to require certified calibration at regular intervals to closely scrutinized standards. After “fixing” a unit, it must be calibrated to a known (legal) standard.

  • avatar
    eh_political

    I don’t get it. You get a breathalyzer at the scene, are booked, and then taken to a police station where blood is drawn, and alcohol levels confirmed, no? I can’t imagine a conviction based only on the administration of a roadside sobriety test.

  • avatar
    superbadd75

    So the state of VA seriously boned this one by not checking their machines out regularly. I would assume that this creates the potential for multiple cases to be looked into and possibly some convictions overturned. I doubt the cops pulled people over for field sobriety tests without some reason, and it’s possible that there will be DUI offenders back on the road without a conviction on their record, and it all could have been avoided. Cost cutting measures seem to cost more in the long run in many cases, this looks like one of those.

  • avatar
    Strippo

    The motor supplier is not as important as the motor specifications that it was purchased against. This smells (!) a little like the defense is casting doubt on the machine’s performance simply because the manufacturer can’t tell exactly who produces the motor. I am doubtful of their claim, but that is the job of lawyers.

    What you have to remember is that the machine can’t be cross-examined like a live witness can. For the results of such a machine to be admissible, the State has to prove to a scientific certainty that the results in a particular case are valid. It’s a process of eliminating possible variables that would cast doubt upon the results. It could well be that the replacement motor specs were sound, but the State got caught with its pants down and couldn’t prove it at trial. And it sounds like Virginia would rather not open up this particular can of worms regardless of what the results would be. I can’t say that I blame them.

  • avatar
    CarPerson

    Maybe the New and Improved Intox-ilizer 6000 Deluxe will use a wildly overpriced proprietary chopper motor that must be replaced every 90 days.

    In King County (Washington State), just before the last election cycle, a judge announced he would no longer allow results from the breathalyzers being used. How convenient it was just after a high female politico was arrested for DUI running for re-election after blowing a pretty ugly number on one.

    Man how the state did howl at that!

    It took a lot of courage in the face of a lot of heat from every direction but he held his ground. It wasn’t too much later all the problems with the machines started pouring out.

    You can only call this a textbook case of an equipment supplier claiming high conformance to doing what it was designed to do then delivering a product easily proven to be at wide variance doing what was promised.

  • avatar
    Bancho

    eh_political :

    No, blood is not automatically drawn that way. In most cases it’s just the word of the breathalyzer as proof.

  • avatar
    CarPerson

    Decals.

    Fix the problem with Decals.

    Remember the radar gun what was proven inaccurate because an officer could aim it at something else, the example used in court was shaking car keys in front of it, to get it to register?

    They solved that problem with a decal that read “Do not shake car keys in front of antenna when measuring vehicle speed.”

  • avatar
    psarhjinian

    I don’t get it. You get a breathalyzer at the scene, are booked, and then taken to a police station where blood is drawn, and alcohol levels confirmed, no? I can’t imagine a conviction based only on the administration of a roadside sobriety test.

    Not everywhere. In Ontario this seems to be the case** but it’s not a given, especially where budgets are thin.

    ** (I know I’ve blown a positive on the breathalyzer after using mouthwash very shortly before and getting pulled over on the way to what was a hopeful date, but ended up with me waiting at the station to get blood drawn)

  • avatar
    GS650G

    There Will Be Blood from now on, count on that.

    With the trillions of dollars made off of DUIs they should be using top notch equipment for this.

    Good Lawyer, he vigorously defended his client and easily saved his client 15-20 grand in court costs, insurance premiums, fines, classes, etc.

    On the down side his client was probably DUI or at least impaired. He could have injured or killed someone out there. Now he high fives the attorney and heads to a bar for a celebration.

    In the end the lawyer is correct that a defendant deserves an accurate machine. In this day and age the authorities have a responsibility to take some of that “fine” money and keep up with technology. Or at least calibrate them regularly.

  • avatar
    bluecon

    (I know I’ve blown a positive on the breathalyzer after using mouthwash very shortly before and getting pulled over on the way to what was a hopeful date, but ended up with me waiting at the station to get blood drawn)

    In Ontario they take you to the station and give you another breathalyzer which you can refuse. The roadside unit is not legal.

  • avatar
    MMH

    Legality and calibration issues aside, this has to be one of the best product names of all time.

  • avatar
    Strippo

    Legality and calibration issues aside, this has to be one of the best product names of all time.

    It sounds like something out of Robocop, doesn’t it?

  • avatar
    mikey

    I live Ontario,we got some tough impaired driving
    laws.I got no problem with that.I like to have a few.I also like to drive.I just don’t mix them.I also practice oral hygiene.Blue Listerine caused me a lot of embarasment.I failed the roadside test.At the police station 1/2 hour later the machine barely registered.In the future I’ll have a severe case of halitosis,but at least I can drive home.

  • avatar
    snabster

    In Virginia, you don’t get a blood test.

    You have a field test (results not admissible in court), then go to the station for a real breathalyzer test.

    That is largely true throughout the United States.

    Although I don’t think someone at .073 and .085 are more drunk than the other, the difference in penalties in considerable. 5 days in jail, $1000 in fines, etc. And you can’t visit Canada again, although some people consider than more of a bonus than a penalty. Oh, and forgot about renting a car for the next five years.

    So, yes, minor calibration errors play a role.

    Also, Virginia doesn’t have a diversion program for first time offender. Yes, you can maybe cut a deal for reckless driving. But that is after spending $3000 for an attorney.

    This case isn’t that interesting; it sounds like a marginal case the prosecutor was willing to throw away. I doubt any judge in Virginia will ever rule on it. You would have to be insane to NOT take that plea deal. There was another Fairfax Judge who was throwing out DUI cases as well, perhaps something in the water there. I know at Law school in VA the local judge would throw out a case on any excuse, as he was mad at the police for his own DUI.

  • avatar
    petrolhead85

    “Intoxilyzer 5000”

    Seriously?!? That’s the actual name? It sounds like something that Billy Mays would be selling. And if you order within the next 20 minutes (’cause we can’t do this all day) you get a free stick of Mighty Putty!!!!

  • avatar
    ihatetrees

    tced2:
    It is irresponsible for authorities to use any automated machine that measures speed, intoxication, running red lights that is not calibrated.

    +1. Regular calibration is needed. Issues regarding motors and software are a side issue. The whole system needs testing.

    In medical parts testing, a calibration failure results in re-testing of all lots tested between good and bad calibrations.

    Data from regular calibrations is also a useful tool for determining when to replace equipment.

    You’d think the state would have good calibration records showing that these machines measured correctly.

  • avatar
    MMH

    It sounds like something that Billy Mays would be selling.

    Maybe even Billy Martin…

  • avatar
    chuckR

    Proof yet again that being in government service doesn’t cure you of your faults – like stinginess, ignorance, incompetence and laziness.

    Will the survivors of the next VA DUI victim be able to sue the state for depraved indifference?

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