This past week I had the opportunity to attend the first criminal defense seminar regarding the Intoxilyzer 9000. In the past, Colorado has used a machine made by the same company, CMI called the intoxilyzer 5000EN. The new machine replaces the Intoxilyzer 5000EN. Colorado made the change in the spring of 2013. Colorado is the first state to sign on for CMI’s intoxilyzer 9000 at a cost of about $1.5 million to outfit the different departments in Colorado. The new machine is much smaller and compact, uses similar technology and claims to be more accurate than the 5000EN because it measures a different part of the infrared finger print of the ethanol wavelength to determine the breath alcohol. Now that may be a bit too scientific for this article but science behind the breath test hasn’t changed. The use of filters and how they are used is a bit different but the limitations of breath testing remain the same. A proper and accurate breath test continues to require a certified breath test operator in a proper environment using a properly maintained and calibrated machine and standard solution conducting the test as prescribed.
So what can go wrong? Many problems can occur with the list of requirements for an accurate test. An experienced DUI lawyer can navigate through the many issues with the machine. There is no way to tell if there is an internal problem with the machine. The company CMI will not allow anybody to check the source code of the software and there has not been the opportunity for an independent expert to work with this new machine. Most breath test operators have no idea how the machine actually works. Many intoxilyzer rooms at police stations are not the proper environment for the test. Often times there are radio frequency interferences that can mess with the results. The state often alleges that the machine completed the internal checks to see if it was working but the internal check doesn’t account for a check on the flow sensor and does not take into account limitations that occur with the accused being tested.
All in all the day with the expert regarding the machine was informative. The Colorado Department of Public Health and Environment (CDPHE) has not let the machine out of law enforcement custody and into the hands of an independent expert. The CDPHE has limited the amount of data stored from the machine to 60 days which limits the long term examination of the machine. The Government has attempted to limit the access and information from the machine in fear of what may happen–scrutiny for the $1.5 million dollar leap of faith to this new, untested, and potentially unreliable breath machine. in the coming months Experienced DUI lawyers will be challenging the new machines, the rules and regulations behind the purchase and use of the machines and the data stored and supplied by the machines for the benefit of our clients.
By Richard Huttner. Find Richard on Google +