Intoxilyzer 9000 Breath Testing Forgeries – NBD

A recent article in the Denver Post details the discovery by DUI defense attorneys in Colorado that hundreds of “certifications” of Intoxilyzer 9000 machines have been forged. The Colorado state health lab is supposed to calibrate and test each breath test machine and then issue a certification that the machine is accurate. Under Colorado law, the machine is assumed to be working properly and accurately if it is certified. But, it turns out that hundreds, maybe thousands, of those certifications were faked. In addition, many of the certifications bore the “signature” of a technician who had quit a year before the certification was issued. Naturally, the health department and the governor shrug and say no independent investigation is necessary – no big deal.

It is a big deal. The certification is supposed to substitute for live testimony from a scientist that the breath test machine was working properly. Judges and juries rely on breath test results alone to convict people of DUI everyday. At least in Kansas, every DUI conviction means a minimum of 48 hours in custody up to a maximum of one year in jail. The breath test machine alone can put people in jail. All that is required to admit a breath test result into evidence in Kansas is to show that the machine was certified, the operator (police officer) was certified, and that the test was run according to a 7 step protocol (basically push the button and tell the person to blow). The certification is important.

The Intoxilyzer 9000 is the breath test machine used exclusively in Kansas. I have seen multiple occasions where police departments in Kansas forged the documents required by law to be sent in to the Kansas Department of Health and Environment to prove that the machine was being tested and the calibration checked. Did those agencies lose their certification to run breath tests? No. No big deal. The Department of Health and Environment, the agency that is supposed to administer the breath testing program in Kansas, has routinely and repeatedly watered down the quality control standards for maintaining reliability in breath testing and the certification of machines and breath test operators. No big deal. The machines are supposed to be tested (once) every “calendar week” by the individual police departments to make sure they are working properly. When agencies fail to do the tests every seven days, the Department of Health and Environment covers for them and says that a “calendar week” means up to 13 days. Hilarious.

They used to at least give the appearance of compliance with modern scientific standards but no longer. Almost every state in America requires two breath tests. Because anyone who was taught science in 7th grade knows that scientific accuracy means the ability to repeat results. You do a test and then a confirmation test. No doctor on the planet would make a diagnosis based on a single test result. But, not in Kansas. One test is all you are given. If the single result is .08 or greater, you are looking at jail time.

So, some lawyers in Colorado looked into the certification of the machines in that state and found out that corners were being cut and documents were being forged. Who is looking out for people in Kansas who are accused of DUI? The breath test machine has to be investigated in every case.

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