Kansas Prosecutor Says Intoxilyzer is not Good Enough for Court

A story from Sumner County, Kansas pits the local law enforcement officers against the County Attorney (the head prosecutor) over breath testing in Kansas DUI cases on the Intoxilyzer 8000. The Sumner County Sheriff’s Department was given an Intoxilyzer 8000 by the Kansas Department of Health and Environment, just like nearly every other law enforcement agency in Kansas that wanted one. They started using it in their DUI cases. The prosecutor, however, has been dismissing those cases because he doesn’t believe in the breath testing machine. The prosecutor cites at least two reasons why: (1) During a training session, the machine was supposed to flag a test as an “invalid sample” due to contamination, but instead reported a valid test of .049; and (2) there was a recent case in which both a breath test and a blood test were done at the same time, and the results were significantly different.The police aren’t happy about the prosecutor refusing to recognize their machine. But, the prosecutor has it right. The machine reported that an invalid and contaminated sample was a valid sample, and not by a little but by .049! This was a test conducted by one of the people who knows most about the machine. Imagine the problems that can occur with the street officers that only have to get recertified on the machine every 2 years. It is bad science and untrustworthy. This issue alone could result in a falsely elevated breath test result and put someone in jail. The manufacturer of the Intoxilyzer, and all of the spokesmodels for the machine at the Kansas Department of Health & Environment will testify under oath that the machine can detect contaminated samples. When incidents like the one described by the prosecutor happen, and they do happen, it is all kept “hush-hush” lest the word get out that the emporer has no clothes.

The Sumner County prosecutor believes that breath tests on the Intoxilyzer are not good enough for the courtroom in Kansas DUI cases. He is the officer of the court charged with determining how to prosecute cases and what evidence to put on.“It’s just not as good as blood in my opinion,” said Watson (the County Attorney). “There are a lot of jurisdictions, I’m sure, that do use breath, I think that certainly the larger jurisdictions…maybe it’s just a phenomenon of having such a high volume that you are willing to accept, ‘Hey, whatever we just want to get the cases through the fastest. We don’t really care how accurate they are, just is it faster than blood.’”

Again, this prosecutor has it right. Breath is faster than blood. Jurisdictions using the Intoxilyzer 8000 are interested in just getting a number, regardless of its true relationship to a person’s blood alcohol content. Invalid samples, mouth alcohol contamination, electrical voltage fluctuations, radio frequency interference, variables in the human body including temperature and partition ratio, and dozens of other issues can all cause people who are not intoxicated to get a result from this machine that is over the legal limit for Kansas DUI cases of .08 grams of alcohol per 210 liters of breath. Everybody knows, and has to admit, that blood testing is more accurate than breath testing. Have you ever heard of a doctor or hospital administering a breath test to a patient? They insist on blood tests, including for alcohol, because that is what decent science requires.

In Johnson County DUI cases, blood tests are extremely rare except in the situation in which there is a traffic accident and the person is going to the hospital anyway, or when drug intoxication is suspected. After a traffic stop, officers usually spend about 15 minutes administering field sobriety tests, and then rush the arrested person to the station where 20 minutes later they can administer a breath test. This does quickly give them a number they can use against the person, but is it good enough to convict? At least one Kansas DUI prosecutor doesn’t think so.