The Atlanta Journal Constitution reports that Gwinnett County Commission Chairman Charles Bannister has been arrested for DUI. There is an interesting twist to this story.
According to the arresting officer, Mr. Bannister failed three field tests for sobriety, his restaurant bill showed purchases of 5 Bud Light beers + a half pitcher of beer, and he reportedly stated to the officer “I can’t believe this is all over one or two beers.” Mr. Bannister was then given a breath test – which registered 0.00!
A blood test was later administered and the results have not been made public.
Assuming that Mr. Bannister did consume some alcohol, the breath test (we can assume this was a Intoxilyzer), the equipment used was clearly faulty. In this case, the faulty equipment benefits the defendant but how often might a faulty breath test machine come back with a false positive?
The point here is not to pass judgment on Mr. Bannister or the integrity of Gwinnett County law enforcement. You can take from this episode that breath testing equipment can be very unreliable. A blood test offers a much more accurate reading of your blood alcohol levels (although there are grounds to contest these numbers as well).
Filed under Arrest issues, Field sobriety testing, Intoxilyzer 5000 issues by on Jun 30th, 2010. 2 Comments. 
One of the ways the state of Georgia can convict a person of driving under the influence is by proving that the driver had a 0.08 grams or more blood alcohol concentration (BAC) while driving or otherwise being in control of a vehicle.
In Georgia, the Intoxilyzer 5000 is the current breath-testing machine used to detect whether or not a person has been drinking or is over the current legal limit of 0.08. Before you are arrested for a DUI, one of the methods an officer will use to determine your guilt is by administering this breath test. If you refuse to take the breath test your driver’s license will automatically be suspended (although there is a way to fight the license suspension – click on link for more).
While the Intoxilyzer 5000 is a sophisticated test, it comes with many design flaws that can potentially help your case if you are convicted with a DUI.
The Intoxilyzer 5000 can result in inaccurate readings if the driver suffers from a variety of illnesses, including diabetes, esophageal hernia, heartburn, gum disease, respiratory problems, and liver disease. Because the Intoxilyzer 5000 also has problems determining whether the alcohol it is measuring is from the driver’s mouth or actually in the bloodstream, if the driver had been chewing certain gum, had tobacco products, breath mints, denture adhesives, or had taken cough syrup before driving, the results are faulty. These inaccuracies are even more significant when drivers are under the age of 21 and could be arrested with a BAC as low as .02% or higher.
The accuracy of the Intoxilyzer 5000 is also dependent on the competency of the police officer administering it. Many officers have not been formally trained in using the Intoxilyzer 5000, and most are given only minimal training. The extent of the arresting officer’s training should always be questioned in court.
Illnesses, potential of alternative forms of alcohol in your mouth, and the arresting officer’s training are all significant factors that could lead to inaccuracies in your DUI case. An experienced DUI attorney can help locate these inaccuracies and save you from a DUI conviction. If you have been arrested for driving under the influence and would like to speak with an experienced DUI attorney, please fill out the Free Case Review form found on this website.
Filed under Intoxilyzer 5000 issues by on Mar 3rd, 2010. Comment.
I have written previously on this blog about on-going litigation between DUI lawyers in various states and the manufacturer of the Intoxilyzer 5000 and other alcohol breath sensor equipment. At issue is the source code of these machines, which DUI defense counsel is calibrated to measure an average sized man. The machines take no account of different sized individuals or possible differences in alcohol metabolism in females.
The manufacturer does not want to release its source code, claiming that this information is a valuable business trade secret. Defense lawyers argue that if this equipment is used to convict their clients then they have a right to see the source code.
Georgia trial courts have not given us a definitive answer. Georgia DUI lawyer George Creal cites a recent case on his blog – Holowiak v. State, where the Court of Appeals sidestepped the issue but refused to order CMI (the manufacturer of the Intoxilyzer 5000) to reveal its source code.
In any case, you may be wondering how these machines work in a general sense. The well known web site “How Stuff Works” has a easily understandable and thorough explanation entitled How Breathalyzers Work. If you and your lawyer plan to challenge a DUI charge by attacking the technology of the equipment used to determine blood alcohol levels, the How Stuff Works article is a good starting point for your research.
Filed under Intoxilyzer 5000 issues by on Jan 28th, 2009. Comment.
San Diego DUI lawyer Rick Mueller reports on his California DUI Law Center blog about a Kentucky case involving a defendant’s request to inspect the source code for a DUI Intoxilyzer 5000. The defendant argued that the State should not be allowed to introduce evidence from the Intoxilyzer if the defense was not allowed to examine how the Breathalyzer worked.
This defendant’s argument is known as a "black box" argument – in other words, a defendant should not be convicted based on the readings from a black box that has unknown internal processes.
The trial judge denied the defendant’s motion, as did the circuit court of appeals. However, the second level appeals court – the Kentucky State Court of Appeals – reversed the prior decisions and granted the defendant’s motion. The apellate court held that the defendant could examine the Breathalyzer source code as long as reasonable confidentiality procedures were followed. Presumably CMI, the company that makes the Intoxilyzer 5000, does not want its source code distributed on the Internet.
I wonder, however, how long the Intoxilyzer source code could remain confidential if lawyers throughout the country continue to convince trial judges and appellate courts to allow for review of the source code. I also wonder what an analysis of the source code will reveal.
In the past I have seen arguments that breath machine results are faulty because the machines are calibrated based on a 180 pound male. It will be interesting to see what other arguments can be made.
Filed under Intoxilyzer 5000 issues by on Feb 2nd, 2008. Comment.
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 source 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.
Filed under Intoxilyzer 5000 issues, Pre-trial actions by on Sep 5th, 2007.
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.
Filed under Intoxilyzer 5000 issues, Trial issues by on Aug 18th, 2006. 7 Comments.
In a gesture of appreciation to his fellow criminal defense lawyers, noted Marietta DUI lawyer 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.
Filed under Georgia Courts, Intoxilyzer 5000 issues, Pre-trial actions by on Jun 22nd, 2006. 3 Comments.
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.
Filed under Intoxilyzer 5000 issues by on Mar 3rd, 2006. Comment.
