Hold Your Breath - This Could Get Interesting!

[SpotsCat]

MIAMI (AP) -- Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine to see whether his test was accurate.

Their strategy paid off.

The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A county judge tossed out Muldowny's alcohol breath test - a crucial piece of evidence in a DUI case - and the ruling was upheld by an appeals court in 2004.

Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.

"Any piece of equipment that is used to test something in the criminal justice system, the defense attorney has the ability to know how the thing works and subject its fundamental capabilities to review," said Flem Whited III, a Daytona Beach attorney with expertise on DUI defense.

The Intoxilyzer, manufactured by CMI Inc. of Owensboro, Ky., is the most widely used alcohol breath testing machine in the United States and is involved in the vast majority of these legal challenges. It is used exclusively by law enforcement agencies in 20 states, including Florida, and by at least some police agencies in 20 other states, according to the company.

Most states have "implied consent" laws for motorists requiring DUI suspects to blow into a breath analysis machine if asked to do so by a police officer.

"The breath test is an integral part of any prosecution," said Earl Varn, an assistant state attorney in Sarasota.

In Florida, state law currently considers a breath test valid if the machine is approved by the Florida Department of Law Enforcement and the person administering the test is qualified. The law also says that a defendant is entitled to "full information concerning the test taken" if such a request is made.

The meaning of that phrase is the key to the DUI challenges in Florida and other states with similar laws.

DUI defense lawyers insist that "full information" means every minute detail about the Intoxilyzer, including the source code used by its computer processor to analyze breath samples, should be subjected to review by expert defense witnesses. Some judges have agreed.

"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," Florida's 5th District Court of Appeal ruled in Muldowny's case, which resulted in his charges being reduced to reckless driving.

Judges in the Florida counties of Manatee, Sarasota, Seminole and Volusia counties are among those who have ruled in recent months that the defense was entitled to the Intoxilyzer's source code to see if the test results are reliable.

There also have been successful legal challenges involving the source code of other machines, including a 2005 case in Bellevue, Wash., in which a defense lawyer obtained the code of the BAC Datamaster testing machine, sold by National Patent Analytical Systems Inc.

But many judges in Florida have ruled the opposite way on the Intoxilyzer, including a panel in Palm Beach County that recently denied challenges by 1,500 DUI defendants who sought the source code under state public records laws.

The tactic has led lawmakers to introduce a measure in the Florida Legislature to clarify that such source codes don't have to be produced for DUI defendants.

Last November, a similar challenge in Omaha, Neb., was rejected on grounds that Nebraska did not have the source code. In Rochester, N.Y., a DUI suspect whose lawyer was seeking the source code was convicted of a lesser charge when the technician who maintained the machine was unavailable to testify.

Because CMI has refused to divulge its source code, Florida officials have argued in court that they cannot produce it for DUI defendants. Although most state judges have upheld that view, others have not.

"The state may not wash its hands of its duty to produce this information by claiming that it does not have it," Volusia County Court Judge Mary Jane Henderson ruled in December.

FDLE officials say that even if the state had access to the source code it would not necessary to test the validity of the breath results. Laura Barfield, alcohol testing program manager at FDLE, said each of the 408 Intoxilyzer 5000s used in Florida - soon to be replaced by the 8000 model - are regularly run through painstaking tests at the state and local levels.

"You don't need the source code to know the machine is providing accurate results," Barfield said.

For its part, CMI said there is no evidence that its Intoxilyzer is inaccurate, noting that a review of 80,000 tests in a 2002 Arizona case produced no evidence of mistakes.

In a statement to The Associated Press, the company said also said the source code is not a crucial element in proving the Intoxilyzer's accuracy and is a proprietary trade secret that could create havoc if computer hackers obtained it.

"Exposure of the source code could not only be detrimental to CMI from a commercial standpoint, but it could also be detrimental to customers of CMI," the company said. "Disclosure of this information could compromise the integrity of test data that is stored in the instrument."

The conflicting decisions around Florida could land the issue before the state Supreme Court. Florida lawmakers may act before that, however.

A bill making several changes to DUI law includes a section clarifying that the "full information" about breath tests does not include the "manual, schematics or software" of the breath machine or any information "in the possession of the manufacturer." The bill is moving through state House committees and could pass later this year.

Prosecutors such as Varn say if the defense challenges prevail it would mean each DUI breath test could be subjected to exhaustive analysis.

"We would have to hire an expert to come in and testify in every case to explain the function of the instrument and what the test results mean," Varn said.

But defense lawyers say DUI defendants have the constitutional right to confront their accuser, even if it is a machine.

"If everything is OK and there's nothing to hide, why do they want to change the law?" said Stuart Hyman of Orlando, a leading DUI defense lawyer who represented Muldowny. "It's ludicrous."

[Crystal Pistol]

It's not necessary to provide schematics of the Intoxilyzer any more so than it is the radar sets.

Radar sets have their function and calibration tested against known standards called tuning forks and certified police car speedometers athat in turn are tested against chassis dynos and frequency counters, and etc ... a series of checks.

The Intoxilyzer is likewise tested against the Guth Simulator each and every time a breath sample is run on it, and room air blanks are run through it between the breath sample and the simulator automatically, and two breath samples are run which are compared to each other, and only if they agree is a result printed out and shown to the operator and accused. During this there are simulator tests and room air blanks between the breath samples, and afterwards. The solution in the simulator is 500 ml and is certified to be 0.10% solution, the results of each simulator test run between breath samples is displayed and the operator is noting if they are within tollerance (0.090 % to 0.105%). The solution is changed monthly, and if it does test out of tollerance, the instrument will stop and a message will scroll across the screen telling the operator why, and the operator must change solutions and continue testing only after it's in tollerance.

Every thing that Intoxilyzer does is recorded step by step in a main computor far away from the testing sight on line, and it's all available for any defense atty.

States laws, courts, prosecutors, and judges who choose to ignore the accuracy and checks built into the Intoxilyzer simply have chosen to take the easy way out and let it go instead of learning a little from the experts who are available to testify as to the accuracy of the instruments and of the checks buiolt into to both preserve and demonstrate that accuracy.

We put men on the moon, and brought them home 37 years ago with technology far less sophisticated than available to the average home owner with a new car or PC in the house today, but we can't convict a drunk using an Intoxilyzer unless the manufacturer provides conmplete schematics ????

Police radar once had the same hurdles in that it was not understood or trusted. The Intoxilyzer relies on the operator only to type in information like accuseds name, dob, ol #, the court info, etc. The operator has no part to play in the actual testing other than to observe and note the operation. The Intoxilyzer is constantly monitoring temps and simulator temps and running several tests itself, and errors will disable it automatically.

There is far less to go wrong and far less chance of operator error with the modern Intoxilyzer than was the case with the Smith & Wesson Model 900 or 900A Breathalyser where we opened the ampoules, we inserted tubes, we balanced the null meter, we alone monitored simulator solution test and temps.

Then, like last night, I get a drunk driver stopped who is all over the road, preliminary breath tests with my small, in car PBT is 0.192 % after we set there 20 minutes. 1-1/2 hours later (had to wait for wrecker and then drive to SO, then another 20 minutes in observation before I can actually ask for a sample, but it was nearer 45 as he belched just as he took the test and caused an invalid sample message which meant I started over another 20 minutes to clear his mouth of any residual alcohol) at the sheriffs office he blows a 0.16 (could be anything from 0.160 to 0.1699, it only shows first two digits past the decinmal) on the Intoxilyzer.
... The average person will rid his body of alcohol at the rate of 0.015-0.018% per hour. I'll do the math ... 1.5 times that is anywhere from 0.0225 to 0.027%, add that to the 0.16 and your right back at low of 0.1825 using the lowest numbers ... to a high possibility of 0.1969 using the higher numbers of the range. My PBT reading of 0.192% is dead center of that range.
Anything over 0.08% BAC convicts him (he's doubled it anyway you choose to view it).
... He's staggering, speech slurred, unable to recall his own adress clearly, reeks of wine, glassy eyes, ... and someone ...
(a court, not you SportsCat ... I realize you're just posting what you read about some liberal court)
... is gonna tell me they doubt his drunkeness or the validity of his arrest?

:rofl:

[Uturn2001]

is gonna tell me they doubt his drunkeness or the validity of his arrest?


Yep that is exactly what they may try to tell you. The same way some of these idiot judges tell society that a person who has had sex with a 7 year old is not a danger to children and can be given probation instead of jail time, the same way they let probation and parole violaters go when they are caught 100's of miles and several states away from "home" commiting another crime and they are released on bond because they are not a flight risk.

[SpotsCat]

The defense lawyers do have a valid point IMHO. Radar is a simple concept; bounce radio waves off of an object, time their return, and calculate speed. All a radar gun computer does is the mathematical calculations that do that. In theory, you could perform the same calculations with a digital timer and a calculator - much like you do when you use VASCAR.

But the Intoxilyzer is different. Somehow when a person blows into it, it measures BAC content by a persons breath, and gives a reading. How? How does it do that? I understand the tests and checks that are performed to make sure the machine gives accurate readings, but how does it perform it's function?

Stick a needle in my arm, take a blood sample, and tell me what my BAC is - simple test, easily understood. Urine tests for the presence of narcotics, amphetamines, LSD, cocaine, etc., - again, all simple chemical tests, easily understood. But how does a breath analyzer actually work?

The company should be able to explain how the machine works, and have their results able to be independently verified. Otherwise - "It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery".


Out of curiosity - how did an LEO prove someone was intoxicated in the days before the Intoxilyzer became available?

[Flying Dutchman]

In many places, you do not necessarily have to be blowing a .08 BAC to be arrested for Driving Under the Influcence (or Driving While Intoxicated - in some other states).

I have seen people arrested for DUI because they fail a FST (Field Sobriety Test), but may end up blowing .05 or .06 at the jail. Arrest is one thing, but conviction is another. Alcohol affects people differently. Some will be slurring their speech and staggering around like crazy, but will not have had very much to drink. Others, the "power drinkers" out there, can blow a .12 and still function almost normally.
:wow:

In sobriety tests I have administered or witnessed, the one to convince an officer that you are impaired involves lifting one foot off the ground and standing while holding your arms down at your sides; while counting from one to thirty. Other things that will give telltale signs: empty or open beverage alcohol containers (beer cans, etc.), odor on one's breath, spilled beer or wine on clothing, 'glassy' eyes, etc., etc. CP can probably think of hundreds more.
:cool:

As for the accuracy of the Intoxilyzer, I think it has been proven time and time again through rigorous testing. And, as CP said, it would do little good to furnish a schematic or reveal computer programming that makes it work. When the athletes in the Olympics are timed, I don't see any of the judges demanding to know how the clocks work for timing the events. All they are concerned with is the accuracy that one second is as close to one second as possible - with an infinitesimal (sp?) margin of error.

PBTs (preliminary breath tests) are required by Virginia law to be offered to DUI suspects, but their results are not asked for in court; nor is the suspect required to use one. Most people will probably opt to take it, and it is likely to help someone who might be "borderline" at or near .08 BAC.

One of our 'unwritten rules' was that if it showed .10 or less on the PBT, there was a fair chance that the subject would be well below the .08 by the time you factored in arrest, transport to the jail, waiting for the operator of the Intoxilyzer to show up (since only a few officers & deputies are certified to operate it) and then waited the 20 minutes or so of observation time.

As for the "olden days" before breathalizers, I don't know what they did. Those things have been around ever since I have been driving, and I am over 40.

[Big_Dave]

Out of curiosity - how did an LEO prove someone was intoxicated in the days before the Intoxilyzer became available?
Back then, before any type of breathalyzer (sp), drunk driving wasn't so 'taboo'. Officers usually just gave you a ride home, had dispatch call someone to come and get you or hauled you downtown for a night in the graybar hotel. You were then released when you were sober enough to leave.

When I was 17, I got pulled over one night for speeding. The Trooper seen the bottle of Jack Daniels on the front seat. It was almost gone. :wow:

He made me do a roadside sobriety check (which I barely passed according to him). Of course, those standards were more lax than they are nowdays.

Anyways, he made me pour out the remaining whiskey before letting me continue on my way. :yikes:

He followed me for a mile or so afterwards just to 'make sure' I was driving ok. :wtf:

[Crystal Pistol]

The defense lawyers do have a valid point IMHO. Radar is a simple concept; bounce radio waves off of an object, time their return, and calculate speed. All a radar gun computer does is the mathematical calculations that do that. In theory, you could perform the same calculations with a digital timer and a calculator - much like you do when you use VASCAR.

But the Intoxilyzer is different. Somehow when a person blows into it, it measures BAC content by a persons breath, and gives a reading. How? How does it do that? I understand the tests and checks that are performed to make sure the machine gives accurate readings, but how does it perform it's function?

Stick a needle in my arm, take a blood sample, and tell me what my BAC is - simple test, easily understood. Urine tests for the presence of narcotics, amphetamines, LSD, cocaine, etc., - again, all simple chemical tests, easily understood. But how does a breath analyzer actually work?

The company should be able to explain how the machine works, and have their results able to be independently verified. Otherwise - "It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery".


Out of curiosity - how did an LEO prove someone was intoxicated in the days before the Intoxilyzer became available?
:fishing:

The Intoxilyzer 5000 (http://www.alcoholtest.com/intox5000.htm) is not "black magic", it is very simple really. It is based on infrared spectrometry. (http://www.alcoholtest.com/ir.htm)
:type:
Pardon my use of links, it was faster than writing it out myself. I understand it, so it ain't all that hard. The Model 900 Breathalyser I mentioned was still in use up until about 10-12 years ago here, it was invented about 1954 as I recall.
:cool:
Before breath or blood test, there was "Saw Drunk, Arrested Same" I think, but that was before my time.
:rofl:
Also, radar does not time the return of a signal bounced off a moving object. The signal is in fact transmitted at a known frequency and if it strikes an object which has relative movement, any signal returned to the radar from that object which is either moving towards or away from the radar, will experience a shift in frequency, and it is the measure of that frequency shift that is used to calculate a speed in MPH. Radio waves, energy, travels at a wave frequency at 186,000 miles per second, which is the speed of light. That speed and frequency will determine the wave length, or spacing. Each successive wave hits a moving object, and because it is moving, each sucessive wave has either less or more distance to travel before bouncing back, thus either increasing or decreasing the wave length of the returned signal, which means the frequency is changed.
:thinking:
Like standing by a RR track as a train approaches and you hear the high pitch of the horn, then as it passes the pitch drops noticeably. It's called the Doppler effect. You can hear the same thing standing by a roadside or racetrack and hear the pitch of the cars drop as they pass. As they approach, each sucessive sound wave has a shorter distance to travel because the there is relative movement and it's getting closer each time, so the waves stack up closer, thus higher frequency ... until it passes by at which point the sucessive sound waves each have farther to travel, thus dropping the frequency, thus dropping the tone to a lower "frequency" one.
:deal:

"Z-Z-Z-Z-Z-Z- :freaked: -O-O-O-O-O-O-O-O-OM"

[USAF_2T2]

What I try to do is when I come across a suspected DWI is talk with the person directly in front of my patrol car. The reason I do this is because they are now a movie star. (front mounted camera) My camera pics up all audio with both what I say and what they say. If neither person is talking you can hear birds chirping and vehicle passing. I do this as I am not Intoxylizer certified yet and it gives me more to work with in court. There are ways to detect possible drunkeness in a person on how they talk. Outside of the obvios slurring and such you can get ques that most people don't pick up on. I'm not gonna divulge such information, but you may think you are sobered up by the blue lights, but I'm here to tell you unless you have played the game for a while, some of us still know.

The position I am standing is like so. I am standing at the front left of my patrol car and the suspected drunk is standing at the passenger side rear of their vehicle. I do this to stop said suspected drunk from wandering in the street and it shows the performance of tests that I ask them to perform.

HEY CP: Did you hear that NC is trying to pass a law where you can't refuse to blow? I have been looking for it as I overheard some guys talking about it at work. I hope it passes if it is truly a bill.

[Flying Dutchman]

In VA, refusing to take a breath test is a separate offense. (But of course, you probably already know that.)

[Crystal Pistol]

FD, I think maybe he's talking about the PBT, not the Intoxilyzer ... but I could be wrong. I'm just not sure as I hadn't heard anything about a change in NY, but then ... I don't know what the law is up there now either.
:rofl:



Also, you are right, one can be arrested under a 0.08% BAC. 0.08 or greater is the presumptive level at which one is presumed under the influence here by statute, but between 0.05 and 0.08 there is no presumption, and less than that it's presumed they are not DUI under the regular DUI statute.

CDL holders while operating a CMV and under age drivers (under 21) have lower limits and are governed by thier own statutes.

[Moxnix]

FD
CDL holders while operating a CMV and under age drivers (under 21) have lower limits and are governed by thier own statutes.
CDL holders while operating a CMV is not a correct statement in the states of Wa. and or Mt. A point 04 is valid for a CDL holder, no matter what or where he is driving.

It doesn't matter if you are on vacation and no where near a CMV, if you blow a .04 or higher, you have just lost your licence for a year.

[USAF_2T2]

I'm not sure about the Commonwealth, but here in NC we have a charge called "Driving after consuming" you can use that if you don't get an 0.08% BAC. That is just the charge you take with you when you see the Magistrate.

[Crystal Pistol]

FD
CDL holders while operating a CMV and under age drivers (under 21) have lower limits and are governed by thier own statutes.
CDL holders while operating a CMV is not a correct statement in the states of Wa. and or Mt. A point 04 is valid for a CDL holder, no matter what or where he is driving.

It doesn't matter if you are on vacation and no where near a CMV, if you blow a .04 or higher, you have just lost your licence for a year.

''WOW'' ...
... but the statement is correct for Virginia, though it would be more correct to state it as "anyone operating a CMV", the laws here do not state it has to be a CDL holder.

§ 46.2-341.24. Driving a commercial motor vehicle while intoxicated, etc. (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+46.2-341.24)

A. It shall be unlawful for any person to drive or operate any commercial motor vehicle (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article; (ii) while such person is under the influence of alcohol; (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any commercial motor vehicle safely; (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any commercial motor vehicle safely; or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood.

B. It shall be unlawful and a lesser included offense of an offense under provision (i), (ii), or (iv) of subsection A of this section for a person to drive or operate a commercial motor vehicle while such person has a blood alcohol concentration of 0.04 percent or more by weight by volume or 0.04 grams or more per 210 liters of breath as indicated by a chemical test administered in accordance with the provisions of this article.
§ 46.2-341.31. Driving commercial motor vehicle with any alcohol in blood. (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+46.2-341.31)
No person shall drive a commercial motor vehicle while having any amount of alcohol in his blood, as measured by a test administered pursuant to the provisions of §§ 46.2-341.26:1 through 46.2-341.26:11. Any person found to have so driven a commercial motor vehicle shall be guilty of a traffic infraction.

And if underage,
§ 18.2-266.1. Persons under age 21 driving after illegally consuming alcohol; penalty. (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-266.1)

A. It shall be unlawful for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article shall be in violation of this section.

B. A violation of this section shall be punishable by forfeiture of such person's license to operate a motor vehicle for a period of six months from the date of conviction and by a fine of not more than $500. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2. The penalties and license forfeiture provisions set forth in §§ 16.1-278.9, 18.2-270 and 18.2-271 shall not apply to a violation of this section. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 18.2-271.1 and may, in the discretion of the court, be issued a restricted license during the term of license suspension.

C. Notwithstanding §§ 16.1-278.8 and 16.1-278.9, upon adjudicating a juvenile delinquent based upon a violation of this section, the juvenile and domestic relations district court shall order disposition as provided in subsection B.

[scubadiver]

Here's another question along the same line. How can you tell if the is person is acutally drunk or is having a reaction of some sort. I worked with a diabetic and occasionally his sugar would get too low and he acted drunk.

[Crystal Pistol]

Here's another question along the same line. How can you tell if the is person is acutally drunk or is having a reaction of some sort. I worked with a diabetic and occasionally his sugar would get too low and he acted drunk.

They do often drive the same and in certain stages, appear the same to the casual observer ...

... but once you get close, start asking questions, note odors, etc ...

... it really isn't so difficult to tell the difference if one will simply pay attention to thier observations. I've delt with both, you hear that they are the same, but once you deal with each ... you'll know the difference.