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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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.

 

 

State crime lab chief resigns after problems raised on DUI evidence
Director, who leaves in March, says problems now fixed
By TRACY JOHNSON
P-I REPORTER

The head of the state labs that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.


Mike Urban / P-I
Barry Logan talks to the media Thursday about his crime lab resignation. At right is State Patrol Chief John Batiste.
"Barry has done an excellent job of addressing the issues during this difficult period," State Patrol Chief John Batiste said. "But he and I agree that forward momentum will require different leadership."

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

Logan has served as the state toxicologist since 1990 and became director of the Forensic Laboratory Services Bureau -- overseeing toxicology and crime labs -- in 1999, managing 220 workers at eight lab locations.

On Thursday, he said he has dedicated his career "to quality evidence in DUI cases" and, after spending months trying to fix the lab's problems, wants the public to know it "can have confidence in the results of these tests."

"I have done as much as I can," he said. "I feel that it's going to help move things forward to have a new director."

Logan, a 46-year-old native of Scotland who is well known and respected in his field, said he remains proud of the labs' work and takes responsibility for many of the Seattle-based toxicology lab's errors -- though he believes they were "dramatically overstated" by defense attorneys.

"With the benefit of hindsight, I can always say that I might have handled things differently," he said.

Doubts about the lab's work surfaced last summer, when lab manager Ann Marie Gordon was accused of signing off on scientific tests she hadn't actually done.

Some of the criticism toward Logan was about how he handled a vague tip about the wrongdoing. He assigned Gordon to investigate the matter, apparently unaware that she was the problem.

Then other errors came to light involving the same issue: how the lab tests an ethanol-water solution used to make sure breath-test machines give accurate readings. The solution is critical in tens of thousands of drunken-driving cases each year because if it's off, people may face charges based on faulty results.

The State Patrol has maintained that inaccurate results have been extremely limited. Defense attorneys have argued that the lab's shoddy practices call all of its work into question.

In October, two Skagit County judges challenged Logan's credibility as they cited careless and potentially flawed work at the lab.

Last month, three King County District Court judges questioned his ability to serve as state toxicologist and found that the lab was fraught with ethical problems, scientific errors and carelessness -- making all breath tests unreliable.

On Thursday, King County Prosecutor Dan Satterberg said Logan built "a solid foundation" of forensic science and suggested that his resignation "is a positive step toward rebuilding the professional reputation of the lab."

Prosecutors, he said, "are eager to work with the State Patrol and the new toxicologist to make sure that they have corrected questioned administrative procedures ... and ultimately restored the confidence of the court system" in breath tests as evidence.

Batiste said he would immediately begin a search to replace Logan. Crime Lab Division Manager Larry Hebert, a 34-year veteran, will take over in the interim.

The state has already appointed Fiona Couper, who most recently served as chief toxicologist in Washington, D.C., to serve as the state toxicologist.

Her job will now be a separate position from the director of the Forensic Laboratory Services Bureau because having someone fill both jobs, as Logan does, is "too much to ask of any one person," Batiste said.

P-I reporter Tracy Johnson can be reached at 206-467-5942 or tracyjohnson@seattlepi.com.

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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."

Breathalyzers Come Under Fire in Court

Posted Aug 10th 2007 2:59PM by Terrence O'Brien
Filed under: Car Tech
Breathalyzers Come Under Fire in CourtSome while back, certain residents of Florida charged with DUI managed to get a court to hand them over the source code of the breathalyzer that had "proven" them to be drinking and driving. Now, in another victory for drunks everywhere, Dale Lee Underdahl of Minnesota has filed a similar petition and won.

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."

The breathalyzer in question in Underdahl's case is the Intoxilyzer 5000EN, built by CMI, one of nearly a dozen manufacturers of devices used by law enforcement. CMI's Intoxilyzer is used in more than 20 states. What's frightening is that the 5000EN is apparently based on the ancient Z-80 processor, which powered the Radio Shack TRS-80 desktop computer ... which went on sale in 1977. CMI has also been accused of making uncertified changes to the machines, and had to issue a recall due to faulty software.

In other words, Underdahl may be on to something. But to be on the safe side, maybe next time he should just call a cab.


Judge tells breath-test maker to release code
By TODD RUGER

todd.ruger@heraldtribune.com
SARASOTA -- The company that manufactures the state's drunken-driving breath-test machines must turn over the computer code that runs the machines or face stiff fines, a county judge has ruled.

Defense attorneys have argued that having their experts examine the Intoxilyzer 8000's "source code" is the only way to ensure the machines correctly calculate a driver's blood-alcohol content.

The Intoxilyzer 8000's first glitch was discovered in April, a month after it was implemented, when state officials realized it failed in certain situations. The state then upgraded the software in machines across the state.

In Manatee and Sarasota counties, more than 32 DUI cases are delayed because Kentucky-based CMI Inc. has not responded to a subpoena ordering the company to turn over the source code for the Intoxilyzer 8000, Sarasota County Judge Kimberly Bonner wrote.

"The failure of CMI to comply with this court's subpoena has created a tremendous backlog of cases," Bonner wrote.

The judge found the company in contempt and gave it 20 days to turn over the source code or it will be fined $3,200 per day, or $100 per case that cannot move forward in the case. Other cases not covered in the ruling are affected as well, the judge wrote.

The company has said that the code is a trade secret. It did not respond to the Sarasota County case, but took the issue to the Daviess District Court in Kentucky.

A judge there quashed the subpoena for the source code. But Bonner said that order has no jurisdiction over Florida courts.

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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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       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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