Blood alcohol or breath alcohol content test results have always
been a potential weak point in DUI prosecutions. DUI defense
attorneys have long tried to exclude results for a variety of
reasons: because breath test machines weren’t as accurate as
blood tests, or because certain machines could give false
positives based on other substances, or because machines hadn’t
been calibrated. The list of possible problems with blood or
breath alcohol tests in DUI cases has always run long.
Lately, though, the challenges have become more sweeping, with
case after case promising to impact dozens, hundreds, even
thousands of additional DUI cases.
Ohio Hospital Blood Testing May Not be Admissible
Ohio processes were shaken in the fall of 2005 when an Ohio
Supreme Court ruling excluded many blood tests conducted in
hospitals. Blood drawn for medical purposes could not be
introduced as evidence in a DUI case unless the state
demonstrated that the hospital had substantially complied with
the state health director’s DUI testing standards. Even when
blood had been drawn at the request of law enforcement, if the
results were challenged, the state would have to prove
substantial compliance.
Use of Alcohol Wipe on Skin Results in Dismissal
Another procedural question arose in January, when State
Representative Charles Portwood’s attorneys succeeded in getting
his DUI charge dismissed because the nurse who had drawn his
blood had used an alcohol wipe to clean his skin. Although
testing seems to indicate that alcohol on the skin has no impact
on the results of a blood alcohol test, Missouri law requires
that the skin be cleansed with a “non-alcoholic antiseptic.”
Other states, including Illinois, mandate the use of
non-alcoholic disinfectants for blood alcohol testing to be used
in DUI cases. These rules have been little enforced in the past,
and many experts agree that the accuracy of the testing isn’t
affected by the use of alcohol wipes. Still, the publicity
surrounding the dismissal of Representative Portwood’s DUI
charge may have opened the door to more challenges and stricter
enforcement of the procedure.
Intoxilyzer 5000 Challenged–and Manufacturer Refuses to
Release Information
In a year already full of challenges to the validity and
admissibility of various blood alcohol and breath alcohol tests,
the debate surrounding the Intoxilyzer 5000 has the potential
for the most dramatic impact. According to the manufacturer’s
website, the Intoxilyzer 5000 is used in twenty states. It’s the
test of choice throughout the state of Florida, where a legal
battle is underway that may exclude all Intoxilyzer 5000 results.
In November 2005, a Sarasota court ruled that prosecutors had to
make the source code for the Intoxilyzer 5000 available to a
defense expert. That information would allow the defense expert
to test and assess the accuracy of the machine. Prosecutors,
however, soon found themselves in a bind–they didn’t have the
source code, and the machine’s manufacturer refused to disclose
it.
The open question as to the machine’s reliability and the
apparent lack of any way to obtain the information necessary to
answer that question has brought a number of cases grinding to a
halt, and opened the door to a rush of possible DUI appeals.
Perhaps more significantly, it’s called into question the future
admissibility of the Intoxilyzer 5000–and any other breath
alcohol testing machine that runs on proprietary software.
Impact Still Uncertain
In Ohio, some law enforcement officers anticipate that the
legislature will act to close the “loophole” created by the
state Supreme Court ruling. Laws on alcohol wipes will
undoubtedly be revisited in a number of states. Both of those
issues will likely be settled one way or the other in the near
future–either the challenges will be laid to rest with new law,
or the procedures will be changed.
The problems raised by the Intoxilyzer cases, though, may prove
much more difficult to address. So long as law enforcement
agencies rely on equipment produced and controlled by private
companies over which they have no control, the door to this kind
of conflict will remain open. The defendant’s right to fully
confront the evidence against him in a DUI prosecution will
collide full force with the proprietary rights of the
manufacturer, and it is impossible to predict the long-term
outcome–or even the outcome of the hundreds of cases already
hanging in the balance.
The only thing that is certain is that while this question
remains open, there’s a crack in the DUI prosecution process in
many states. If you have a current DUI charge, be sure to
consult an attorney in your area before taking any action.
(C) 2006, Total DUI, Inc. This article may be reproduced in its
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