Georgia DUI Blog

“Push the green button.”

I am not joking…that’s all it takes.  Police officers love to get on the stand and tell you about all of their great training on how to operate the Intoxilyzer 5000 and how they are certified by the GBI to run it.  When he tell you how he set up the machine properly, ran a diagnostic check and tested the ambient air conditions to make sure nothing was going to interfere with the test…consider this.

“Officer, you could train a monkey to give this test couldn’t you?”

He is likely to respond that a monkey couldn’t set up the machine.  What he is referring to is typing in your client’s name, arrest date, license number etc..  If you can hunt and peck on a typewriter, you can run this machine.

Try to explore what the officer know about breath testing and the “science” behind it.  The officers are trained to say that they are not familar with the inner workings of the machine.  Somebody told them that the machine worked, that is it.  Very few actually understand the principles in play with breath testing, they are just drinking the Kool Aid.

The following post is from Chuck Laroue (Who gives credit to Larry Taylor).

CMI did a study using the Digtal Corp.Nov.  29 1983 and they exposed the Intox 5000 to Freq form .5 Mhz to 1000Mhz  and there was several frequencies where the detector gave no response, all frequencies above 625 Mhz registered no response, RF inhibit was documented from 15 to 120; 130- 175, 185 to 295; 310-315; 370; 575; 595 to 615 all other tested frequncies exhibited no response.

The test results were included in the 1984 CMI Operator’s manual.

I am not aware of any modifications or upgrades to the RF detector.

There have been other studies:

National Bureau of Standards, under contract with the National Highway Traffic Safety Administration to conduct accuracy testing on breath machines (referred to in the report as “Evidential Breath Testing” devices, or “EBTs”):
“The Washington D.C. Metropolitan Police Department reported to NHTSA that EBTs were found to display erroneous BAC [blood-alcohol content] readings in the presence of electromagnetic fields from radio transmission….Representatives of NHTSA and NBS were given a demonstration by police officers who routinely conduct breath testing using an EBT in a mobile van. One police officer operated his handheld radio within 1 foot of the EBT and demonstrated that the electromagnetic field could severely affect the analysis of alcohol samples.”

In 1983, the National Bureau of Standards quietly prepared a preliminary report on tests performed on the various breath testing devices used by police agencies nationwide (Effects for the Electromagnetic Fields on Evidential Breath Testers). Each of the 16 models tested were subjected to four different frequencies typically present in the standard police environment. Of the 16 units tested, 6 showed minimal interference; 10 of the 16 showed substantial susceptibility on at least one frequency.
The report characterized the potential effect of RFI on the testing of alcohol as “severe”.
Those conducting the study noted that the local Washington D.C. Metropolitan Police Department was complaining that breathalyzers were giving erroneous breath alcohol readings in the presence of radio transmissions. In a field demonstration of the RFI problem for representatives of NBS and the National Highway Traffic Safety Administration, D.C. officers using a breathalyzer in a mobi! le van showed how handheld radios radically affected the analysis of breath samples

“These results show that EMI is a potential problem with many of the EBT units currently in use….The states may have to take interim measures to determine the extent of their individual problems with EMI affecting EBTs.”

The reaction by the federal government to this report was, perhaps, predictable. Afraid that it would undermine public confidence in law enforcement methods, the government classified the document and then buried it. However, it was later resurrected by a Minneapolis DUI law firm’s “Freedom of Information Act” lawsuit. Most manufacturers of breath machines today quietly offer an “RFI detector” as an option in their products. Unfortunately, these “detectors” are unreliable and, in any event, are rarely purchased by law enforcement agencies.

Other RFI studies:

Andre Moenssens, et al., Scientific Evidence in Civil and Criminal Cases ‘ 3.09 at 204 (4th ed. 1995). This interference describes the effect of an electronic instrument on a radio wave or current that it is not designed to pick up. If a particular Breathalyzer as an electronic instrument were susceptible to RFI, then the measurement of light distance obtained when the operator balances the meter might not be an accurate indication of the amount of alcohol in the breath sample. Instead, the light distance might reflect, in part, a deflection in the meter needle caused by a stray current induced by radio waves in the surrounding environment

A Cherokee County Magistrate Judge filling in for a State Court Judge granted a defendant’s Motion for “Full Information “pursuant to O.C.G.A. 40-6-392. Specifically, the defense is requesting the source code for CMI’s Intoxilyzer 5000. Ralph Villani, the defendant’s lawyer, is to submit the Order to the Judge for signature within 7 days. The Judge has indicated that he will grant the State’s interlocutory appeal making this Georgia’s test case on the matter. The same litigation has already taken place in Florida and it ended with the legislature enacting a law that limited the information the defense is entitled to. Check back for more information.

Palmaka II (Palmaka v. State - A06A1060) was published on July 27, 2006 by the Court of Appeals.  It is a bad case for the defense on the issues presented on appeal.  We will go into the substance of that later.  However, the last paragraph may contain a little gold nugget that defense lawyers need to help with attacks on the Intox 5000 in jury trials.  It may make a good jury charge.

“We further note that OCGA 40-6-392(a)(1)(A) provides only for the admissibility of the test results.  A defendant remains freee to challenge the weight and credibility of that evidence before the jury.”

Hmmm…that might be helpful.  Thanks to Jeremy Citron, the eternal optimist, for pointing that out.