Troy Broussard — Demystifying the Intoxilyzer 5000

Mr. Broussard recounts a conversation with a police officer:

I was speaking with a state trooper friend of mine at court the other day about different breath testing devices. We started talking about recent news reports of a flashlight, which also contained a device for detecting alcohol and the inherent problems with such a device.

When this trained police officer stated, “It’s not infallible like the Intoxilyzer 5000.” Even though I knew that some officers say this, and CMI, (the manufacturer of the Intoxilyzer), thinks the Intoxilyzer 5000 is God’s gift to law enforcement, I was still blown away (pun intended) by this troopers sincerity.

He actually believed this statement.

Unfortunately, many judges in this state believe the same as the trooper. It is incumbent upon us as defense attorneys to challenge this erroneous assumption and offer facts, which will provide judges, prosecutors, and law enforcement officers, with realistic limitations of this machine.

This article will attempt to point out some of those limitations.

In his article, Broussard outlines several key arguments that exemplify weaknesses of the Intoxilyzer 5000. The link the entire article is below.

Among several enlightening observations, Broussard states the following:

Accuracy is like trying to hit the center of a bull’s eye. It is the ability of the machine or method to provide a result as close to the true value as possible. Precision, on the other hand, is associated with the repeatability or results from analysis of the same sample. Is there clustering of the “hits” on the target or are they scattered? It is possible to have good precision without having good accuracy.
Thus, simply repeating a measurement does not insure accuracy.

Read the whole article here.

St. Louis Judges and Courts defend DWI plea deals

The St. Louis POst-Dispatch reports that several area courts have pled DWI cases to SIS maing it difficult for repeat offenders to be held to a harsher standard.

Regardless, the common plea deal is a suspended imposition of sentence (SIS). It means no conviction for the defendant if two years of probation is successfully completed.

Charles Billings, a judge in Fenton, Overland and Des Peres, said most courts believed they were administering real punishment and leaving enough of a paper trail that the SIS would count as a prior offense, as the law allows.

Read the story here.

1,200 DWI convictions inTexas to be set aside

“More than 1,200 driving while intoxicated convictions in Harris County are invalid after a contractor was convicted of faking inspections of alcohol breath testing devices, prosecutors said.

Deetrice Wallace, a Department of Public Safety contractor, told investigators that she had falsified inspections records for the South Houston and Clute police department intoxilyzers.”

This story illustrates that every single aspect of the record keeping and inspections should be targeted during the cross examination of a DWI case.

I am taking notes.

Read the whole story here.

DWI dismissed because bilingual driver could not understand field sobriety test instructions

This story was reported by KOAT out of ALBUQUERQUE, N.M. — Maria Vaughn works as a translator and advocate for domestic violence victims.

She’s fluent in both English and Spanish and that’s why what happened in court Wednesday is so confusing.

“I was just stunned as to how it played out; it became English as a second language,” Vaughn’s mother-in-law, Lorie Vaughn, said, adding the judge’s decision baffled her and she never communicates with Maria in Spanish.

Maria Vaughn was stopped on Interstate 40 last November because she was suspected of driving drunk and police tried to give her a field sobriety test.

Vaughn’s attorney, Phillip Sapien, said that’s when the language barrier became a problem.

“She does speak English and can converse, but when we’re talking about instruction on a field sobriety test, there’s more technical language used and I think there was a communication issue,” said Sapien.

But in Maria Vaughn’s job as an advocate for domestic violence victims, Action 7 News is told she’s required to speak both English and Spanish.

Vaughn’s lawyer said since his client couldn’t understand the officer’s instructions, the field sobriety test is unreliable.

“She didn’t understand that process,” he said.

A judge agreed and dismissed the case.

All DWI charges against Maria Vaughn were dropped and she only faces a charge of driving without her headlight.

(Reported by www.koat.com)

DWI: Will NJ allow the Alcotest machine? Yep.

The New Jersey Supreme Court on Monday approved the state’s new breath test for drunken driving, allowing the prosecution of more than 10,000 suspected drunken drivers to resume.The manufacturer, however, must provide training and software data on the Alcotest 7110 for defense lawyers under the 6-0 ruling by the state’s highest court.

The decision came seven years after the Alcotest machine began being used in New Jersey. The rollout was halted in 2006 after lawyers for accused drunken drivers raised questions about the reliability of the machine.

Prosecutions of more than 10,000 DWI cases from 17 of the state’s 21 counties have since been on hold while the state’s highest court evaluated the Alcotest.

The Alcotest machines replaced Breathalyzer devices, which had been used for a half-century.

Alcotest machines measure blood-alcohol levels using two independent tests and leave much less room for human error than the Breathalyzer test.

However, higher breath temperatures were found to give higher blood-alcohol readings.

The reliability of the new machines is critical in New Jersey because judges, not juries, hear all drunken driving cases and rely nearly entirely on the reading of the machine. So, if a driver is determined to have a blood-alcohol level above .08 percent, he or she is guilty.

Alcotest is made by a Pittsburgh-based U.S. unit of the German company Draeger. The unit had been in Denver. Messages seeking comment from Draeger was not immediately returned.

The state had already spent millions buying Alcotest machines to replace Breathalyzer devices, when prosecutions were halted following objections from defense attorneys about the reliability of the tests.

The case went up to the New Jersey Supreme Court, which appointed Michael Patrick King, a retired judge, as a special master to obtain expert testimony on the machine.

The court’s 131-page decision largely adopted King’s determination that the Alcotest was reliable. It rejected, however, King’s suggestion that a breath temperature sensor be added to the Alcotest machine, concluding that was unnecessary and impractical.

The attorney general’s office, which backed the machine, had argued it would cost $1,300 more for a machine with a sensor, $1,600 per to retrofit existing machines.

Attorney General Anne Milgram said her office was pleased that the court upheld “the scientific reliability of the Alcotest and the admissibility of its results in evidence.”

“The court’s ruling provides a firm foundation for using this next generation of breath testing instrument in the enforcement of our drunken driving laws,” she said in a statement. “The Alcotest, utilizing state-of-the-art technology and a host of additional safeguards, will provide strong evidence and sure justice for those who violate New Jersey’s drunken driving laws.”

The decision was generally welcomed by a lawyer who represented the New Jersey State Bar Association in the case, Jeffrey E. Gold.

Besides training and access to software changes, the ruling allows defense lawyers and experts to purchase the $13,500 machines, Gold said.

“That’s very important, to put the defendants on an even playing field with the state,” Gold said. “We want transparency and fairness.”

He believes the decision is the first on Alcotest’s reliability by a state’s highest court.

Evan M. Levow, a lawyer for many DWI suspects, said they would ask the U.S. Supreme Court to accept an appeal.

He maintained that the machine has not been proved reliable. He said that lawyers can’t confront officials who program the Alcotest _ to challenge the way they calibrate the machines, among other things. That inability deprived defendants of due process and equal protection, he said.

“This case raises fundamental issues of constitutional rights,” Levow said.

DWI: Blood test without consent?

Is a search warrant required for the most intrusive of searches?  The Minnesota Supreme Court is trying to decide where to draw the line.

The case involves a 48-year-old Burnsville, Minn., woman who crashed head-on into another car and injured the other driver in May 2006. Attorneys made their arguments before the state supreme court on Wednesday.

No one is disputing that Janet Sue Shriner, who had four previous DWIs, was drunk that evening. After the crash, she drove the wrong way into traffic, then along a sidewalk and across a busy intersection against the light. When an officer stopped her, she had bloodshot eyes, smelled of alcohol and couldn’t stand up.

The officer had her blood tested, without her consent, at a nearby hospital. Charges against her included first-degree drunken driving, criminal vehicular operation and leaving the scene of an accident.

But a Dakota County judge agreed with Shriner’s attorney that the officer should have tried to get a search warrant before testing her blood. The judge threw out the evidence and dismissed the drunken-driving and criminal vehicular operation charges. The state court of appeals upheld that ruling.

Read the whole story here.

Improper Proof of Prior DWI

The issue has arisen in a DWI 2nd trial where an Arkansas prosecutor attempted to prove the prior DWI with a certified print out from Driver Control showing the first DWI. Is this proper?  While the Supreme Court hasn’t addressed the issue, it presents two problems.

First, the certified print out from Driver Control is not the same as a court record or transcript so it would not be as accurate and would not show everything that happened at court.

Second, the printout, while certified, would not overcome a proper hearsay objection.

Thirdly, the Driver Control document would not show whether the accused had an attorney or had waived counsel at the previous DWI proceeding. Arkansas law requires that for a prior DWI to be admitted as evidence in a subsequent proceeding, the State must prove the accused was represented by counsel or that counsel was waived.

Man arrested for DWI three times in 24 hours

See the story here.

Illinois Supreme Court Requires FRYE Hearing for HGN Test Admissibility

Read entire opinion here.

Tougher DWI laws in New York

“Enough is enough,” state Sen. Charles Fuschillo (R-Merrick) said in a news conference Tuesday. “We need to end this epidemic of drunk driving.” Fuschillo was joined by Nassau District Attorney Kathleen Rice and Assemblyman Harvey Weisenberg (D-Long Beach).

Aggravated vehicular homicide is a felony carries a maximum penalty of 8 1/3 to 25 years imprisonment. Aggravated vehicular assault carries a maximum of 5 to 15 years in prison.

The law is aimed at drunken or drugged drivers who kill someone or cause a person serious injury, Rice said.

Read entire story.