MORE PROOF THAT THE INTOXILYZER DOES NOT WORK AS DESIGNED A recent case from the Minnesota Court of Appeals shows that police officers, judges and attorneys – on both sides, fail to recognize and understand that Minnesota’s breath test machine does not work as advertised by the manufacturer. In Connelly v. Commissioner of Public Safety, a decision issued by the Minnesota Court of Appeals on December 19, 2006, the Court let stand a trial court ruling permitting the Intoxilyzer test results, even where the police officers failed to follow protocol and observe the driver for 15-20 minutes. This is a key component to help ensure the test result is not artificially high. "Mouth alcohol" can dramatically affect the accuracy, validity and reliability of the test result. Breath test machines are intended to test the amount of alcohol in a person’s blood. However, residual alcohol may come from one’s mouth or stomach. This can may occur from recent ingestion of alcohol or through burping or gastric reflux. In fact one published study shows that mouth alcohol can increase the reading by 0.18! The Minnesota Bureau of Criminal Apprehension (BCA) claims there are three safeguards to "ensure" the breath test result is not affected by mouth alcohol: 1. the 15-20 minute observation period; 2. "slope" detector; and, 3. duplicate samples. I have found that if the observation period is not followed, the other two safeguards are insufficient to prevent mouth alcohol. Professor Hlastala's reports in a recent article that the slope detector is unreliable. Pat Harding of the Wisconsin crime lab also published a peer reviewed study which concludes the slope detector does not work. The Effect of Dentures and Denture Adhesives on Mouth Alcohol Retention, Journal of Forensic Sciences, July 1992.("The slope detector was never intended to be a substitute for residual mouth alcohol detection and prevention protocols)." During Intoxilyzer training I attended in November, 2006, we were able to replicate the effects of mouth alcohol (falsely elevate the test result) without the slope detector flagging the mouth alcohol. (A subject with no alcohol in his body was flagged for mouth alcohol). Jan Semenoff, the forensic scientist to taught the course, believes, and our testing confirmed, that although Minnesota utilizes two successive samples as part of the test, that they are given too close in time thereby eliminating almost any benefit. So, IF 1. the observation period isn't followed; 2. slope detector does not work as designed; and, 3. duplicate samples are too close in time, THEN: the state has not established "that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability." State v. Dille, 258 N.W.2d 565, 567 (Minn.1977). I believe that a large amount of driver’s breath test results are falsely elevated due to mouth alcohol. Police officers, judges and lawyers on both sides fail to understand that the Intoxilyzer used in Minnesota and elsewhere does not work as claimed by the manufacturer. If you believe your breath test result is higher than it should be, you need a Minnesota DWI attorney on your side who knows the failings of the Intoxilyzer and has the tools to fight and win on your behalf. Call Chuck Ramsay at 651.604.0000 for a free consultation. Click here to read about Chuck Ramsay’s background and his successes. |
