Friday, February 8, 2013

The Cautionary Instruction: Prosecutions in jeopardy over breathalyzer decision

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 higher.

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 equipment.

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 accuracy.

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 designed."

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 testing.

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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