Utah DUI Attorney : Salt Lake City DUI Lawyer & Attorney : Glen Neeley : Serving Davis County, Ogden, Brigham City, Logan

Utah uses two machines that are manufactured by the same company.  Both work on the same principles.  The newest machine is the intoxilyzer 8000.  This is the most common machine that is being used at this point because it is mobile.  It can be carried in an officer's car.  Every night, in Salt Lake City, there is a DUI squad of officers circling around bars waiting to pull people over for minor infractions.  If the officer does not have the 8000 machine with him, he calls the carrying officer to bring the machine to the place where he has a person under investigation for DUI.  The 5000EN is used in Utah, but seems to be phasing out and replaced by the 8000.  The question, are the machines accurate?   If you take a breath test, you would hope that it tests your system for alcohol.  

A recent study showed that not to be the case.  A man was in the park, allegedly very inebriated.  He presented himself as being lethargic, having slurred speech, and ataxia.  He looked drunk.  He was tested by the officers with a 5000EN machine.  The result was .288, which is almost 4 times the legal limit.

He was taken to the hospital.  The hospital ran a blood test on the man and found no alcohol in his system.  Instead, methanol was found in his system.  The man was suicidal and drank a gas line anti-freeze known as Heet.  The breath test machine read methanol as being alcohol.  What if a person works with chemicals all day long and absorbs these chemicals into the blood system.  The person is then pulled over for some small infraction, like a license plate light out, and tested for alcohol?  The machine says the man is guilty of being over a .08 and should be convicted of DUI, when in fact the machine was in error.  The article is below.

 

www.utahduilawblog.com/uploads/file/Intox-EN-MeOH (1).pdf

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A couple of years ago, the State of Utah began purchasing a new product from CMI, Inc., the intoxilyzer 8000.  Utah has purchased all machines from CMI since I have been practicing law.  The new 8000 intoxilyzer differs from the 5000 model in that the 8000 is a portable machine.  The machine can be carried around in a car and plugged into the car cigarette lighter for a power source.  The machine is also supposed to have better technology and be more accurate.  I recently defended a man that blew into the intoxilzyer 8000 in the Salt Lake County Special Operations building.  The card read that the man blew a .148.  He looked to be almost twice the legal limit.  Here is the problem.  Look closely at the card.  Look at the breath volume.  There is no air going through the machine.   According to this card, the man is at a .148, and the man is not breathing any air through the machine.  Well, that is great technology.  The 8000 will tell you a person's breath alcohol content without even reading any air.  I have had to redact personal information out of this card to protect the privacy of the man that I defended, but other than that, this is a true and accurate representation of the card printed in this case.  New technology or another tool to accuse people of the scarlet letters "DUI."

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I saw this story about Cynthia Sommer and was overjoyed that an innocent woman was released from jail.  I was saddened that it took 2 years of jail, a jury conviction, and a "second test" to finally exonerate her.  Why did it take so long for a second test.  This was a murder case.  This was a case that the prosecutors convicted an innocent woman.  This was a case that could have been solved without ruining a life of a grieving woman with a simple duplicate test.  What does this story have to do with DUI's in Utah?  People in Utah accused of DUIs are requested to take a single test.  The breath sample is not preserved for later testing by an independent agency.  Compare the breath test machine that has the same computer chip of the 1970 version of the Atari computer game with the high tech blood testing machines used in most murder cases, and yet the first test was wrong.  How many innocent people have been convicted of DUIs because only one test was given?  In Utah the answer could be astonishing.

 The story follows: Continue Reading...

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    A couple of years ago I attended the Indiana University Borkenstein Course. This is a course that Utah Breath Test technicians are required to take to qualify for their job as technicians. The taxpayer spends a lot of money on these people to take this course. The course is taught by the top scientists in the country and the world. For example, AW Jones from Sweden is probably considered as the worldwide expert on breath testing. Dr. Kurt Dubowski is probably considered the leading expert on breath testing in the nation.

    All of the scientists and experts that taught at the program taught one common theme for forensic breath testing: Quality Assurance is the most important aspect of forensic breath testing. Each expert emphasized that any breath test program should employ duplicate breath testing to ensure an accurate result. The Utah Department of Public Safety chooses to ignore the quality assurance safeguards of duplicate breath testing. I have heard the excuses that it would cost too much to "we don't have to and we don't care." A fellow National College for DUI Defense member posted his research on states that require duplicate testing and those that don't. http://www.wvdui.com/StateBreathMachines.asp

• The interesting thing is that 27 states reported duplicate breath test requirements. 18 states still employ single breath test requirements.

     If it is important to ensure that tests are accurate, that innocent people are not convicted, and to ensure that justice is served, why doesn't Utah step up to the plate. It is not expensive, it is just a software issue. The state has recently purchased brand new Intoxilyzer 8000 machines. Those machines are designed to do duplicate testing. Yet, duplicate testing is still not employed. It seems to me that if the state employed a system to ensure accurate results, they may have to employ the idea that maybe the officer made a mistake in making the arrest. Continue Reading...

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Barry Logan is (was) the head of the Washington State Crime Lab.  He has resigned because of the fiasco that took place in the lab.  I met Barry at a course I took in Indiana.  He was very knowledgeable about the science of Breath Testing.  I'm sad that this has cost him his career.  I am sad that innocent people may have been convicted because of the things that happened in the lab.  I am also sad for a corrupt justice system.  Here is the story as posted in Seattle.

I have also posted the story here in case the link dries up.

 

 

Continue Reading...

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I have a friend in the State of Washington named Andrea Robertson.  Excellent Attorney.  She sent me an email this week about a huge mess that is going on in Washington.  The gist of the mess is that the State Toxicology Lab staff violated ethical boundaries (lied in quality assurance affidavits), were sloppy in their testing of samples, and did not do things according to their procedures.  Andrea assisted Ted Vosk in mounting the allegations and bringing to light the horrible injustice that occurred because of the "good guys", the government.  The order specifically talks about the corners cut by the head people.
Here is a copy of the order from the judges.

• www.utahduilawblog.com/Order Granting Defendants motion to Suppress-1.pdf

Andrea was interviewed by several News People.  Below is a small clip of one of those interviews.

    Here is the interesting thing about this whole scam.  The State of Washington, in my opinion, has set the standard for breath testing programs across the nation.  This particular lab brought us the famous "Baker Rule" named after a case that requires officers to check a person's mouth and have a waiting period prior to breathing into a breath test machine.  I have been to the Borkenstien course at Indiana University where the greatest science minds come together to teach how breath test programs should be run.  At the top of the faculty list is two top lab people from the Washington State Lab.  Here is the Lab that sets the standard, and it turns out the lab staff seem to be dishonest and sloppy when they are trying to convict people of DUI.  Maybe they thought, "who cares, they are just drunk drivers", maybe they thought, "it's too tough to do things right", or maybe they thought, "who is going to find out."  Well, I'm glad that there are lawyers like Andrea on the front line, someone who cares about people being accused, someone who feels that if the state is going to try to convict her client, they better take the time to ensure accuracy, and someone who took the time to find out what is exactly going on.  There were a lot of people that helped on this project.  Andrea was one of several brave soles to take on the government.  I'm proud to know her and proud of her for being a part of this.

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The Courts in Florida are recognizing the fact that the breath test machines are not as accurate as everyone wants you to believe.  In fact, the way you breath, or how long you breath into the machine, can determine a high or a low test.  The machine only requires 1.1 liter of breath to qualify to give a result.  So what happens if the person puts 2 liters, or 3 liters of breath into the machine.  It makes sense that your result will double and triple.  This is not uncommon.   

The judge in Florida stated, "Rules that permit a test operator to have the subject blow into the machine as long as he, in his undirected discretion wishes ... is insufficient to create a scientifically reliable test." Continue Reading...

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On August 12, 2007, I wrote a little bit about the Source Code that the manufacturer is refusing to let anyone see.   A Defendant has a right to see and challenge the evidence against him or her.   This issue is being heavily litigated in Florida.  Apparently, CMI Inc., the manufacturer, said we are not providing the source code and we are going to disobey a court order to produce the source code.  Click this link to see the order.

The highlight of the order is that CMI is being fined $3200 for every day they do not comply with the order.

Makes you wonder what are they hiding.  Is their multi-million dollar company going to be exposed as convicting innocent people?  Again, it sure seems odd that people who swear up and down that they had very little to drink fail the breath test in a big way with really high numbers.

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Many times, clients ask me how the intoxilyzer determines their blood alcohol content. I try to explain the mechanics of it, the theory of it, and the science of it. The problem is that the manufacturer of the machine, CMI Inc., will not release the source code of the software in the machine. For all we know, the machine generates random numbers that essentially say you are guilty. It is interesting that many people will swear up and down that they only had one or two drinks. When they take the test, they end up being way over the limit. There are some serious questions about this machine. Why would the manufacturer be afraid of releasing the source code? Their argument is that it is copyrighted. I can see that argument, but they will not release the source code even under a protective order that will prevent the code from being released to anyone else and can only be used for analysis. Maybe CMI is afraid that their conviction machine will be revealed for what it is, a box that makes them money and convicts innocent people.  This machine uses a processor like computers do.  However, it is not state of the art.  The processor is the Z80 chip.  This processor was used in the Atari that I played with 30 years ago.  Here's a story about litigation over that source code.

• What is source code and why would you want it? Breathalyzers are basically computers with blow holes, and the source code is what makes them run. That source code is what sends people to jail. The defendants in these cases simply want a good look at their accuser. As Underdahl's lawyer said, "for all we know, it's a random number generator."

Continue Reading...

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    In Utah, it is illegal to drive when your blood/breath alcohol content is over a .08%. To determine how much alcohol is in your breath, the government uses three methods: a breath machine, a blood sample, or a urine sample. The most common method to test for alcohol in a person’s system is using the breath machine. Utah uses two different machines made by the same company: the Intoxilyzer 5000 and the Intoxilyzer 8000. The technicians that maintain these machines for the government used to argue that the Intoxilyzer 5000 was state of the art machine. Now, they argue that the Intoxilyzer 8000 is more accurate that other machines. Doesn’t that raise a question about the accuracy of the machines? If the 5000 was so accurate, why then is the 8000 even more accurate. Stephen Hamilton in Lubbock Texas writes about how these machines are breath test guessers. The machine is simply guessing what your alcohol content is at the time you take the test.

    Guessing! Why is the government employing a program that guesses your alcohol content and then tells the world that you or your loved one was driving while intoxicated? Everyone knows that if you give two simultaneous breath tests, one will not be the same as the other.  A breath test is an indirect measurement of what is in your blood. Why doesn't the government employ a program that takes a direct measurement of what is in your blood like a blood test in all cases?

    Maybe it is too expensive. Maybe it is too inconvenient. Maybe it would show that officers make mistakes in arresting everyone who smells like alcohol. If the government is accusing you of a crime, try to lock you up, take your license from you, and infringe substantially on your life, shouldn’t they use the most accurate means of proving your innocence or guilt instead of using a breath test guesser.

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A Preliminary Breath Tester (often referred to as a PBT) is a small handheld breath tester that an officer will administer on the street when investigating a citizen for DUI. In Utah, most Courts will not allow the result of a PBT into evidence and will not allow the jury to hear evidence about a PBT. However, some judges will allow an Officer testify that he administered the PBT, but that it only showed positive for alcohol. In my opinion, this is deceiving to the jury. Here are some frequently asked questions about the PBT.

• Do I have to take the PBT? No. There is no consequence if a person refuses to blow into a PBT. A PBT is not a device that is calibrated on a regular basis by the police, it does not check for alcohol in your mouth, and can be very inaccurate.

• Will I lose my license if I refuse a PBT? No. Consequences to your license applies to other chemical tests such as an intoxilyzer or a blood draw. The PBT is considered a field sobriety test by most courts in Utah.

• Can I request to see the results of the PBT? Absolutely, but the officer does not have to show you those results. Some officer will tell you. Other officers will tell you it just says positive for alcohol. Some officers will just not let you see it. Always request to see the result and make a mental note of what the officer says or does.

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       I am often asked, “should I take the intoxilyzer test.” There is no easy yes or no answer to this question. If you take the test, you are providing evidence to the government that is difficult to dispute. If you don’t take the test, you are looking at a possible 18 months suspension (or more if you have prior DUI incidents) of your driving privileges and the imposition of an ignition interlock device to be placed in your car for three years.

     If there was absolutely no alcohol in my body, then yes, I would take the test.  If you have been consuming alcohol, you have to weigh your options. Do not believe that you are below the legal limit just because you have not consumed much alcohol. Too many clients tell me, “honestly, I didn’t think I would be that high.” Do not assume you can beat the test. I own an intoxilyzer 5000en. I can get high results from breath sprays, mouth wash, and even bread. The machine is a conviction box and in my opinion is not an accurate means of measuring alcohol in your body. It is an indirect measurement of what is in your blood. The machine makes assumptions that all people have the same blood to breath ratio. The machine makes the assumption that everyone’s body temperature is the same. As an attorney, it is much easier to defend you when you have refused to blow into the machine. 

    Personally, I would rather have a suspended driver’s license and the other restrictions, than to have a conviction on my record. Even if you do decide you are going to take the test, you could still have many of the exact same restrictions. If your breath test is .16 or above, the Court is most likely going to impose the ignition interlock device. Sometimes judges impose the device regardless of your result. 

    If  you are a drinker, make your decision now whether you want to take the test.  Don’t be the person that says, “I will never get pulled over.” I have had clients educate themselves and realize that these machines are not reliable and accurate. Utah only requires the officer to take one breath sample when testing you. Many other states require two samples that must agree within a certain percent. It’s like my father always said, “measure twice, cut once.” The Utah breath test program is archaic and out of date according to the experts.  The leading experts, nationally and worldwide, all agree that at least two breath tests are required when dealing a DUI. In Utah, the officer’s agenda is to put a citizen through field sobriety tests and then get the answer wanted from the machine without any question. 

    Make your decision before it happens. Question the officer about his machine and his agenda. Ask him, “if I blow below the limit, are you going to let me go?” “Can you give me a more accurate blood test instead?” Tell the officer you do not trust the machine. 

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