A Minnesota lawyer has challenged results to Intoxilyzer DUI breath test results. Attorney Ryan Pacyga contests the results of more than 160 DUI tests claiming they are in error. In Tennessee law enforcement uses similar equipment, the Intoxilyzer 5000, as in Minnesota. Timothy Williams reports on this issue in the New York Times.
Q How long do you believe there has been a problem with the Intoxilyzer, and what made people start looking into it?
A The suspicion is that this probably started a long time ago. The more air you blow into the machine, the higher the alcohol rate it registers. You have officers saying, “Blow harder. Blow harder,” as people are blowing into these machines. I’ve seen it happen time and again. In some cases, if you didn’t blow enough air into a machine you get what is called a “deficient sample,” which is qualified as a refusal. A refusal takes a harsher punishment in Minnesota.” [Note: The state and the manufacturer dispute that blowing harder is linked to higher readings.] I’ve handled over 1,000 D.W.I.’s in the last seven years and always look at the breath volume and compare the two samples [tests consist of two breaths into the Intoxilyzer]. I’ve seen this. I don’t know whether it could be tested or if it’s been tested. It’s kind of anecdotal. The other thing is this machine uses a control — a simulated solution control that is usually between a .078 and .082 when it is put into the machine. When the machine does the “control” and “replicate,” I often see that, despite knowing the control is a given value, the machine measures it higher, or lower. The point is that it knows what the control is, and it still isn’t measuring it right. The state says it’s within an acceptable limit. It may be acceptable to the state, but if you are a defendant, it’s not so cool.
Q How many cases are involved here?
A Over all, tens of thousands of tests probably over five or six years. A lot of lawyers never challenged the tests. We’re probably down to around 4,000 now. I’ve got over 160 people myself. My understanding is that is the second largest group in the state.
Q Why is this issue important?
A In some form or other, everyone involved in this is fighting for their lives. Someone who drives as part of a job — a truck driver, someone who makes deliveries, a traveling salesman — they’re going to lose that job. They’ve had training for their jobs and that’s all the training they have, and especially in this economy, their prospects for employment are not good. There are mechanics, they have to test-drive cars. They’re out of work. There are also background checks for white-collar workers. There’s not a lot of tolerance for a D.W.I. A lot of people are getting screened out because employers think if you have a D.W.I., you must be an alcoholic.
My take on the Intoxilyzer 5000 in TN. Tennessee chose not to use a newer version of the Intoxilyzer, the Intoxilyzer 8000, after reviewing the machine. Both the Intoxilyzer 5000 and 8000 have faced a number of legal challenges in several states: Ohio, Florida and now Minnesota. It is my understanding that law enforcement in Tennessee uses the Intoxilyzer 5000 exclusively. Currently results from the Intoxilyzer 5000 are admissible in Tennessee Courts.