In 2005 Virginia Department of Forensic Science (DFS) revealed in a grant request that its evidentiary breath test devices, Intoxilyzer 5000 (68), were “dated, unstable and unreliable.” DFS went on to say that, “Funding of this request will allow the agency to replace instruments that are 9-10 years old and for which replacement parts are not available.” West Virginia had begun replacing its dated, unstable, unreliable Intoxilyzers with emergency funding in 2004.
FOIA requests of internal DFS documents revealed serious problems with Virginia’s Intoxilyzers,
The IR source that is currently being sold is having problems with sensitivity and transitioning between motors…The motors are another issue, the current motor will be discontinued as of January 1, 2006. The “replacement motors” are in short supply…CMI doesn’t want to continue to support the 5000 line since they have 2 generations of instruments produced since that time.
Through FOIA, Harrisonburg Virginia DUI Attorney Bob Keefer found that DFS was using 90 cent cassette player motors instead of the $80.00 to $100.00 motors designated by the manufacturer. These motors are critical to the accuracy of the testing as erratic motor speeds will cause instability in the electronic signals, which can affect the timing of the device.
Keefer’s research revealed, as might be expected with substandard parts, that the devices were suffering electronic problems. Electronic problems cause many different issues to occur, depending upon where in the operational sequence the problem occurs. For example, the calibration can fall out of tolerance. When this happens test results cannot be considered to be accurate within a reasonable degree of scientific certainty.
Despite these problems DFS has always claimed that the Intoxilyzer could not be wrong because it would not let itself make a mistake. According to DFS these machines have never made a mistake.
Despite the problems and the FOIA documents, DFS still claims publically that the now 12 year old machines are not showing any signs of ageing. DFS, of course, maintains that Virginia does not have to replace the Intoxilyzers.
According to DFS, out of 50 states the EC/IR II is used in only four states besides Virginia: West Virginia, Wisconsin, North Carolina and Tennessee.
The EC/IR II was intended to use two analytical methods: EC (electrochemical or fuel cell) and IR (infrared technology). The plan was that the EC/IR II would insure reliability by checking the fuel cell results against the infrared results. Agreement between such different analytical methods would insure reliability. Unfortunately, Intoximeter was unable to coordinate the different analytical methods. For that reason, the device only uses the fuel cell to measure alcohol and determine blood alcohol content.
Time will tell whether DFS made a good decision to replace its never wrong Intoxilyzers with the EC/IR II.
Bob Keefer practices DUI defense in Harrisonburg, Virginia; Rockingham County, Virginia; Staunton, Virgina; Augusta County, Virginia; Woodstock, Virginia; Shenandoah County, Virginia; Waynesboro, Virginia and other parts of the Shenandoah Valley. www.BobKeeferLaw.com
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