The following article is an interesting reprint from Virginia Lawyers Weekly:
New breath machine, new DUI defenses?
By Alan CooperPublished: October 8, 2010
Tags: DUI
“Both instruments are equally accurate and precise,” says Alka Lohmann, the woman responsible for calibrating the state’s breath alcohol machines and training their operators.
She’s talking about the Intoxylizer 5000 and the Intox EC/IR II, the machine that replaced the Intoxylizer 5000 by April 2009.
That certitude, and Lohmann’s insistence that medical conditions don’t affect the machines’ readings, drive defense attorneys crazy when they represent accused drunken drivers.
Defense lawyers acknowledge the newer machine is generally accurate. But they are exploring possible technical defenses that can nibble around the edges of the prosecutor’s case and give a client leverage. An Oct. 1 program in Williamsburg highlighted some of these challenges to use of the new EC/IR II.
0.08 and beyond
When it comes to filing charges and finding defenses, the magic number for both prosecutors and defense attorneys is 0.08 percent. That is the level at which a judge or jury is allowed to infer the driver was under the influence of alcohol. At 0.15 percent, mandatory penalties kick in.
If the reading is 0.08 percent or higher, the officer takes the suspect’s driver’s license for seven days – 60 days for a second offense or until the trial date for a third offense.
A DUI conviction for a reading of 0.08 to 0.15 percent usually results in a fine and a restricted license for a year that typically allows only driving to work and a few other essential trips, according to Michael C. Tillotson, the Newport News attorney who organized the Williamsburg program.
The stakes go up at 0.15 percent, Tillotson said. There’s mandatory jail time of five days, and, if the defendant is lucky enough to get a restricted permit, he can drive only if his vehicle is equipped with an ignition interlock system that he has to pay for. The device detects whether he has alcohol in his breath, and the car won’t start if he does.
For a defendant facing enhanced penalties, a lawyer needs to look closely at the particular defendant and at the particular machine used to determine BAC.
Medical conditions, such gastroesophageal reflux disease (GERD), diabetes, a fever – even belching – can result in inaccurate readings.
The argument involving GERD, for example, is that alcohol from the stomach, in addition to the alcohol from the lungs the machine is supposed to measure, can elevate the blood alcohol reading from the machine.
Lohmann maintains the EC/IR is designed to differentiate alcohol in the mouth caused by acid reflux from alcohol in the lungs. When operators follow correct procedures, it minimizes the likelihood of a false reading because of a health condition, she said.
A breath test cannot be conducted for at least 20 minutes if a suspect has belched because the belching can mix stomach alcohol with breath alcohol and give a false reading.
The training protocol also requires two tests at least two minutes apart. Test readings must be within 0.02 of each other for the test to be valid, and the suspect gets the benefit of the lower reading.
Some machine data available
Those procedures are recorded in a detailed database, from the steps involved in the test of an individual suspect, to when the machine was calibrated or had its software upgraded.
If an attorney submits a request to the Department of Forensic Science under the Freedom of Information Act for details about a client’s interaction with the machine, the department routinely provides a computer-generated log of every event involving the machine within five days before and after the test of the suspect. Lohmann said the department gets about 100 such requests a week.
Corinne Magee, a Northern Virginia attorney who attended the program, said she routinely files such requests and analyzes the responses for anything that might suggest an irregularity in the machine or in the way an operator conducted the test.
She said EC/IRs typically report a “deficient sample” in at least a quarter of the tests.
Lohmann counters that she regards that reading as an indication of the type of sample the suspect must provide. A proper reading can be produced only by a slow, steady breath, unlike the huffing and puffing that produced the best result in the Intoxilyzer.
One thing the attorneys don’t get is details about the programming of the software for the machine.
The manufacturer and the department should be willing to explain the reasons for routine software upgrades that are reflected in the maintenance records for the machines, said Thomas E. Workman Jr., a Massachusetts lawyer with an electrical engineering background, who spoke at the Williamsburg program. “If it’s important enough to tell you that a change was needed, it’s important enough to know why,” he said.
Workman is among a number of lawyers across the country pressing for the source code on the EC/IR’s software, information the manufacturer says is proprietary.
Magee said acquiring the code is important because “it’s the only way we can figure out whether the machine is doing what it’s supposed to be doing.”
DUI defense lawyers also have problems with how precisely the machine does what it is supposed to be doing. It translates measurements it takes into BAC, but that translation is based on two assumptions: the temperature of the air exhaled into the machine is 93.2 degrees Fahrenheit, and the so-called “partition ratio” for converting a breath sample reading to BAC is 2,100 to 1. Variations in the actual temperature and in the metabolism of individual suspects make those assumptions unwarranted, lawyers say.
The variations can mean that a breath alcohol reading of 0.08 or 0.09 percent actually represents a BAC of 0.06 or 0.07 percent, they argue.
“I just wish [the manufacturer and DFS] would be fair and acknowledge that there are problems,” Tillotson said.
They operate from the premise that “any ideas of variability undermine the whole system,” he said.
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Charlottesville, Virginia
434-973-7474
http://www.tgblaw.com/
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Tucker Griffin Barnes
Charlottesville, Virginia
434-973-7474
http://www.tgblaw.com/
Inquire@TGBlaw.com
Want to know more about us? Firm Video (3 min)
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