From today's New York Times:
A Lawyer in Minnesota Challenges the Accuracy of D.W.I. Breath Tests
By TIMOTHY WILLIAMS
Published: August 19, 2011
For nearly five years, the accuracy of drunken driven tests administered
with a breath testing device used by Minnesota law enforcement agencies
has been in question.
About 4,000 people in 69 Minnesota counties have challenged the results
based on what they believe to be the device’s faulty readings of
blood-alcohol levels. The state has maintained that the breath test results
are accurate and that those found to have been driving with alcohol levels
above the legal limit should be punished.
This year, a judge ruled that although the device’s source code
contained errors, its shortcomings did not affect the accuracy of the
results. The decision was appealed, and the case is before the Minnesota
Supreme Court. Ryan Pacyga, a lawyer who represents nearly 200 of the
people accused of drunken driving, and who are now challenging the results,
Q Please describe what is at issue with this device.
A The machine is called the Intoxilyzer 5000EN. It is manufactured by
a Kentucky company that sold the machines to Minnesota law enforcement.
It uses infrared technology to measure particulate matter, and then uses
a mathematical formula to convert it to what the blood-alcohol level would
be. That’s because our law in Minnesota says it’s illegal
to have a blood-alcohol content of .08 or more, so any test other than
blood — like breath and urine — has to use a conversion rate
to convert the reading into its blood-alcohol equivalent. The machine
is somewhat antiquated — akin somewhat to an old Atari machine game
console. There is a lawyer in the state who got the idea we should ask
for the source codes for these machines, which are software updates that
from time to time the manufacturer sends out. At times, Minnesota has
installed the source codes. At times, it has not. That’s problem
No. 1. Problem No. 2 is we want to test the source codes themselves because
it is the source code that is the accuser, not the officer. Some judges
started granting our requests to test the source code. Some said it was
irrelevant. Prosecutors said, “We don’t have access to the
source codes.” And then the manufacturers said they weren’t
going to release the source code because it was akin to Coca-Cola’s
Q How long do you believe there has been a problem with the Intoxilyzer,
and what made people start looking into it?
A The suspicion is that this probably started a long time ago. The more
air you blow into the machine, the higher the alcohol rate it registers.
You have officers saying, “Blow harder. Blow harder,” as people
are blowing into these machines. I’ve seen it happen time and again.
In some cases, if you didn’t blow enough air into a machine you
get what is called a “deficient sample,” which is qualified
as a refusal. A refusal takes a harsher punishment in Minnesota.”
[Note: The state and the manufacturer dispute that blowing harder is linked
to higher readings.] I’ve handled over 1,000 D.W.I.’s in the
last seven years and always look at the breath volume and compare the
two samples [tests consist of two breaths into the Intoxilyzer]. I’ve
seen this. I don’t know whether it could be tested or if it’s
been tested. It’s kind of anecdotal. The other thing is this machine
uses a control — a simulated solution control that is usually between
a .078 and .082 when it is put into the machine. When the machine does
the “control” and “replicate,” I often see that,
despite knowing the control is a given value, the machine measures it
higher, or lower. The point is that it knows what the control is, and
it still isn’t measuring it right. The state says it’s within
an acceptable limit. It may be acceptable to the state, but if you are
a defendant, it’s not so cool.
Q How many cases are involved here?
A Over all, tens of thousands of tests probably over five or six years.
A lot of lawyers never challenged the tests. We’re probably down
to around 4,000 now. I’ve got over 160 people myself. My understanding
is that is the second largest group in the state.
Q Why is this issue important?
A In some form or other, everyone involved in this is fighting for their
lives. Someone who drives as part of a job — a truck driver, someone
who makes deliveries, a traveling salesman — they’re going
to lose that job. They’ve had training for their jobs and that’s
all the training they have, and especially in this economy, their prospects
for employment are not good. There are mechanics, they have to test-drive
cars. They’re out of work. There are also background checks for
white-collar workers. There’s not a lot of tolerance for a D.W.I.
A lot of people are getting screened out because employers think if you
have a D.W.I., you must be an alcoholic.