Monday, November 28, 2011

Kansas' Breathalyzer is under fire. Read the recent article in The Pitch

Kansas' breathalyzer of choice faces scrutiny

Questions remain on the Intoxilyzer 8000.

Posted by Ben Palosaari on Wed, Nov 16, 2011 at 12:41 PM

Suspected drunken drivers in Kansas might want to cross their fingers or rub a lucky rabbit’s foot before taking a breath test to determine their blood-alcohol level. That’s because Kansas law-enforcement agencies use the Intoxilyzer 8000, a blood-alcohol testing device that’s gaining a reputation for being more of a slot machine than an accurate test of someone’s level of intoxication.

The Intoxilyzer 8000 has been the source of headaches for officials and courts in several states, and it might be just a matter of time before the same issues hit Kansas. Here’s how the machine works: It collects a driver’s breath through a tube attached to the side of a large gray box. The device then shines infrared light, which alcohol absorbs, into the breath. The machine takes a reading of the light using a proprietary source code to calculate the blood-alcohol content, then prints a sort of receipt displaying the information.

In Kansas, the Intoxilyzer 8000 is used in most counties, including Johnson, Wyandotte, Leavenworth and Douglas. However, 21 Kansas counties don’t use the machines. In Sumner County, County Attorney Evan Watson announced in January that he wouldn’t use the Intoxilyzer to prosecute DUI cases. Instead, that county would rely on blood tests. Watson didn’t respond to several interview requests from The Pitch, but he told news outlets in April that he’d seen the device fail, and it didn’t “instill [him] with confidence.”
Kansas City, Kansas lawyer Jay Norton says Watson’s approach is appropriate, given the Intoxilyzer’s history of inconsistent responses and its sensitivity to radio-frequency interference from electrical devices such as smartphones."The concern isn’t for accurate and reliable science," Norton says. "The concern is for winnable cases."

Officials nationwide have grown wary of trusting the Intoxilyzer. Earlier this year, a Florida investigation found thousands of breath tests with the Intoxilyzer 8000, dating back to 2006, that had produced inaccurate calculations. Forty percent of the Sunshine State’s 231 Intoxilyzer 8000 units were found to be faulty. Some of the machines registered as much as 12 liters of breath from suspected drunken drivers, despite human breath capacity topping out at 5 liters. "It’s saying that it’s getting 10, 15, 20 liters of breath from a human being, which is impossible. It’s fiction," Norton says. "There’s something wrong with the software in the machine, the function of the machine."

In October, prosecutors in Manatee County, Florida, announced that they would throw out Intoxilyzer readings for about 100 DUI defendants and instead either use other evidence to prosecute the cases or drop the charges.

In Ohio, a judge wrote a decision in June allowing defendants to challenge breath results. The judge noted a witness’s testimony that "the longer you blow, the higher your score" with the Intoxilyzer. Another Ohio judge has refused to allow evidence gathered by the Intoxilyzer in his courtroom until the state proves that the machines produce accurate results.

The state of Kansas, however, is standing by the Intoxilyzer 8000. The Breath Alcohol Laboratory Program of the Kansas Department of Health and Environment oversees the state’s 251 Intoxilyzer 8000s. Breath Alcohol Supervisor Christine Houston says the devices are accurate, and when they need repair, the KDHE has procedures in place to rotate them out of service. Houston says she has worked with Intoxilyzer technology for 10 years and has no reason to doubt its effectiveness.

The KDHE doesn’t see a county’s refusal to use the machines as a repudiation of the Intoxilyzer. "That’s their prerogative,” Houston says, “and I’m not going to tell them one way or another." Houston says the KDHE never had the chance to convince Watson in Sumner County of the Intoxilyzer’s usefulness. "He also has never allowed me to be able to demonstrate the instrumentation to him or been able to explain to him how the instrument works,” she says. “He has no idea how it even works, much less whether it works accurately and precisionally [sic]."

Blood and urine tests are acceptable forms of testing, but Houston says the number of breath tests far outweigh the number of blood tests. "If there was some idea or philosophy that the instrumentation was false in some way, shape or form, you wouldn’t have the discrepancy that we have in the number of breath tests versus blood in the state," she says.

CMI Inc., the company that manufactures the Intoxilyzer, did not return requests for comment. And the company doesn’t appear to be helping its cause. Courts in multiple states have told CMI to release the Intoxilyzer source code so that defense attorneys can learn how the device calculates blood-alcohol content. The company has refused, saying it’s a trade secret. CMI is also in a bizarre standoff with Florida, where the company has been found in contempt for not releasing the code.

In Kansas, no legal challenges to the Intoxilyzer 8000 have been mounted. But Norton says the troubled device’s future doesn’t look good. "I think that CMI is just doing the best that they can to outrun all of these boulders that are rolling at them and this machine right now," he says. "I think that public opinion on this machine may eventually shift because there’s been so many problems, and they’re being pointed out more and more."

Read the original article here

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