The Pittsburgh Post-Gazette/Ipso Facto
February 8, 2013
Dauphin County Judge Lawrence F. Clark Jr. ruled recently that breathalyzer
machines used by police to gauge the intoxication level of drivers cannot be
considered accurate beyond a blood-alcohol reading of 0.15 percent.
The 30-page opinion makes it impossible to prove the most serious level of
DUI—those drivers who register blood-alcohol readings of 0.16 percent or
During the Dauphin County case the Commonwealth’s expert witness testified
that the manufacturer was performing the initial calibration of the testing
device contrary to the regulatory requirement that the analysis be done
by an independent laboratory.
Clark further ruled that DUI prosecutions based on any blood alcohol-level
readings secured by using the Intoxilyzer 5000EN should be regarded as “extremely questionable.”
As a result, the Pennsylvania State Police have temporarily suspended the use
of the breathalyzer in drunken driving cases.
State police spokesman Adam Reed said, "The case is being appealed. It is
certainly far from over. But for cautionary reasons, we have made the temporary decision that anyone we arrest for
suspicion of DUI will not be given the Breathalyzer test."
The problem exists beyond Pennsylvania’s borders. In Ohio, a 1984 Ohio
Supreme Court decision limits the right of suspects to object to the science of
a breathalyzer once it has been approved by the Ohio Department of Health.
In 2008, Ohio used $6.4 million in federal grant money to buy 700 Intoxilyzer
8000 machines. The machines are designed and manufactured by CMI, Inc. of
Owensboro, KY, the same manufacturer of the beleaguered Pennsylvania
In Florida, the Supreme Court is hearing oral argument in a drunken driving
appeal where lawyers for three defendants are asking the court to give them
access to software for breathlyzer machines to help challenge their
CMI, Inc. is again at the heart of the controversy. The Intoxilyzer 8000 is the only breathlyzer certified by the
state of Florida.
Last summer, the Minnesota Supreme Court set aside challenges to the
Intoxilyzer 5000EN, upholding a finding based on the state's expert witness that
the instrument "produced valid breath alcohol measurements and functioned as
The impact of the ruling on counties in western Pennsylvania is mixed. For
instance, in Beaver, Butler and Crawford Counties some departments will be
impacted by the Dauphin County decision as state and local municipal police
departments in those counties use both breath and blood testing. In Lawrence
County, the decision will have no impact -- all departments use only blood
The most significant impact will be in Allegheny County. The city of
Pittsburgh uses breath analysis almost exclusively and, as the Post-Gazette
reported, Allegheny County registers the highest number of arrests for driving
under the influence of any of Pennsylvania’s 67 counties.
As a result, Allegheny County District Attorney Stephen A. Zappala Jr. has notified local police chiefs to temporarily use only blood tests
for suspected driving under the influence.
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