Thursday, March 7, 2002
Breath-test evidence in DUI cases questionable
(Photo: Accuracy of this Intoxilyzer 5000 machine at the Bay County Jail, which analyzes the breath of individuals with suspected high levels of alcohol in their bodies, has come into question by area attorneys. News Herald Photo: Terry Barner.) Buy Photo
DANIEL JACKSON
The News Herald
Defense attorneys have filed motions to suppress breath-test evidence in nine local DUI cases, contending that an Intoxilyzer 5000 used at the Bay County Jail was broken in September and never repaired.
Both the Bay County Sheriff's Office and the Florida Department of Law Enforcement deny that the machine is broken, although both admit that the results of a couple of tests given on the machine last fall were not within acceptable tolerances.
Attorney John Daniel said the Bay County Sheriff's Office was not supposed to use the Intoxilyzer after it failed to pass a monthly inspection Oct. 11, but kept using it anyway.
Daniel said breath tests conducted on that machine since October are unreliable and should not be admissible in court because the machine was not repaired.
"Intoxilyzer results are probably the most important evidence in a DUI trial," Daniel said. The Florida Department of Law Enforcement "has adopted regulations that Intoxilyzers have to read standardized solutions within a certain range of tolerance," he said. "This machine was failing to register within that range, and it has not been repaired since.
"FDLE regulations are clear," Daniel said. "If it fails to test in the designated range, it has to be reported to a regional inspector and taken out of service. This machine hasn't been taken out of service."
In October, Bay County Sheriff's Sgt. James R. Nelson reported that the machine was complying with state regulations.
However, the results of two tests conducted on the machine were outside the range of acceptable tolerance.
J.W. Cooper, the FDLE's regional inspector for the alcohol-testing program, said there was a problem with the October inspection, not with the machine.
"It didn't pass that inspection," Cooper said. "Two readings were not within our range. According to his (Nelson's) report, it's in compliance, but not according to his results. That doesn't necessarily mean that there was a problem with the instrument."
Cooper said there must have been an error in Nelson's testing, because the machine is working correctly. It has passed every monthly inspection since October and an annual inspection that he conducted personally on Jan. 10.
"There isn't a single problem with that machine," Cooper said. "The readings are completely accurate."
During the October inspection, Nelson "should have stopped the testing, found the problem and run three more tests," Cooper said. "If those tests were not in compliance, he would need to take it off line and contact me for repairs. He failed to do that."
Nelson and Lt. Greg Peel, who operate the Intoxilyzer at the jail, said they are confident that the breath tests taken in the last four months were accurate.
"He (Cooper) came down and did the annual inspection, and it passed," Nelson said. "We're not going to run the thing knowing there is something wrong with it."
Peel said deputies are just as thorough as defense attorneys when it comes to validating the accuracy of a breath test.
"If something is wrong, we'll be the first to admit it," he said. "The last thing we want to do is charge someone who wasn't drunk with DUI."
Daniel said he expects more attorneys to file similar motions of behalf of other defendants. He has asked that the court consolidate the hearings of the defendants in the interest of judicial economy.
Looks like they have been having problems with these machines for quite some time.
Saturday, December 14, 1996
Local police mishandled DUI tests, lawyers sayTroy Espe
The News Herald
http://www.newsherald.com/
A team of defense lawyers argued Friday that Bay County
police officers boggled monthly checkups of breath-testing
machines and that the results are potentially inaccurate.
During a pretrial hearing in Bay County court, a team of a dozen
defense lawyers motioned to dismiss 25 DUI cases. For years,
police officers have improperly checked breath-testing machines
used to measure blood-alcohol levels, defense lawyers said.We felt like (our clients) were getting screwed because of the
improper maintenance of the equipment,'' defense lawyer John
Daniel, who was responsible for corralling the group, told The
News Herald.
If the three county court judges overseeing the case decide to
throw out the DUI cases, it could be a landmark decision. It might
mean all other pending DUI cases could also go unconvicted.
County Judges William Cooper, Elijah Smiley and Tommy
Welch listened to more than six hours of testimony in which
lawyers pored over details of how Bay County law enforcement
conducted monthly accuracy tests of the Intoxilyzer 5000, the
machine used to determine blood-alcohol levels.
In this pretrial hearing, defense lawyers said Bay County law
enforcement officers used dirty equipment, were poorly trained and
did not follow state guidelines.``It is an epidemic problem that is running through this area,''
defense attorney Harry Harper told the court.
However, state experts testified that even though officers didn't
conduct the monthly Intoxilyzer tests perfectly, testing procedure
allows for some margin of error.`You have to give them some type of leeway and some type of
trust in conducting these tests,'' said John Cooper, district alcohol
breath tester supervisor for the Florida Department of Law
Enforcement.
WHY!!!!!!!!
Officers from the Bay County Sheriff's Department and the
Florida Highway Patrol testified that Intoxilyzers had failed an
occasional monthly accuracy test. When retested though, the
machines reported accurately or were taken out of service, they
said.
Prosecutors also argued that Intoxilyzers never tested out of the
accepted range during the months the 25 DUIs were issued.
Defense lawyers grilled officers on the maintenance of the breath
testers. Harper asked state Trooper Douglas Grice if he had
followed the guidelines of a 1994 state memo.I don't know if I was operating in compliance because I never
read them,'' Grice said.
Harper asked sheriff's deputy Johnny Landingham if he cleaned
glass pipes after tests.Tom Wood, FDLE Applied Consent Program administrator,I don't know a way to clean them,'' Landingham said. ``I empty
them and put them in a box.''
testified that many of the procedures the defense objected to
wouldn't be enough to foul up test results.
``We try to compensate for all the variables that might happen
and eliminate them,'' Wood said.
When pressed, though, Wood said he couldn't defend the testing
procedures of Bay County officers.
``(The officers) certainly have not acted within your guidelines,''
defense lawyer Jim White said while questioning Wood.
``Right,'' Wood replied.
``They certainly have not acted in a scientific manner,'' White
said.
``Right,'' Wood said.
John Cooper of the FDLE testified that monthly testing isn't a
perfect science but results are still accurate.``These tests are performed in the field,'' Cooper said. ``It's only
common sense to make some room for human error. It's only
common sense that you allow for some tolerance.''
SAY WHAT!!!!!!!!!!!!!!!!!!!!!
The judges' decision isn't expected until next week or later.
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