A Question Of Resources

Arresting drivers on the basis of roadside testing wastes officers’ time, Keefer says, time that is better spent taking more seriously impaired drivers off the road.

Instead of testing drivers stopped for missing taillights who smell of alcohol, Keefer says, police should test those stopped because they’re driving erratically.

"In the old days, you knew somebody was drunk," he says. "They were throwing up or driving all over the road."

For drivers, one DUI conviction can lead to license restrictions, insurance rate hikes and even consequences at work, he says.

So Keefer says he tells his clients not to drink and drive, but also not to take a roadside breath test. State law requires a driver’s consent to a test at the jail, on the Intoxilyzer 5000, a machine that gives "evidentiary" results, or those that can be used in court.

But Virginia law does not require roadside breath tests, Keefer says.

Of course, Keefer’s not so sure the jail’s machine is always accurate, either.

The One That Counts In Court

When the Intoxilyzer 5000, housed at the Rockingham County Regional Jail, indicates you’re over the limit, the results can be used against you in court.

CMI Inc., the machine’s manufacturer, is based in Owensboro, Ky., and states on its Web site: "In only a few years, the Intoxilyzer 5000 EN has changed the face of DUI enforcement."

Virginia’s machine is an Intoxilyzer 5000, but not the EN. While the EN is an updated version of the Intoxilyzer 5000, specific differences between the two machines couldn’t be determined because the manufacturer would not agree to an interview. The company’s site says the Intoxilyzer 5000 EN is used in more than 20 states.

The Intoxilyzer 5000 has been questioned in courts in several jurisdictions, and now Keefer is questioning the machine in Rockingham County.

He has asked a General District Court judge to order that source codes, which show how the machine analyzes breath samples, be turned over.

Assistant Commonwealth’s Attorney Christopher Bean says he’ll argue that the Intoxilyzer 5000 is reliable, and that asking for a company’s trade secrets is unnecessary. After hearing arguments, a judge will decide whether to ask CMI Inc. to turn them over, an order that has not been answered in other areas, Keefer said.

The reason for the request in Rockingham County, according to Keefer’s motion filed in a pending case, is that on Oct. 5, 2005, the Virginia Department of Forensic Science changed the program in the jail’s machine.

Keefer says he doesn’t know what changes were made, or why. "If [the program] needed to be replaced," he asks in an interview, "was it doing so well before?"

Attacks on the machine in other states also raise questions, according to his motion.

In November 2005, judges in Sarasota County, Fla., ordered CMI Inc. to turn over source codes for 160 cases involving Intoxilyzer tests, according to Keefer’s motion.

Five years earlier in Arizona, judges went further, excluding 1,300 breath tests after CMI changed its program in the machines. In that case, the program recorded only samples that could be read, and didn’t say when tests were aborted and automatically tried again.

When told a local attorney was questioning the machine’s accuracy and had requested company information, Bill Schofield, CMI Inc.’s manager of engineering, declined to comment.

"Our company has a policy now. We’re not going to make any comments," Schofield said. "We’re involved in these cases as witnesses, and I’ve been told not to talk to anyone."

A Reliable Machine

The Virginia Department of Forensic Science maintains Intoxilyzer 5000 machines and trains police to use them successfully, department officials say.

Paul Ferrara, the department’s director, says defense attorneys often attack the machines in court in an effort to get their clients off.

A high number of DUI cases means innovative, even "off-the-wall" defense strategies come up, Ferrara said.

"Everything from false teeth to other things that affect the test," he said. "In the final analysis, our instrument is extremely reliable and accurate."

In addition to regular testing every six months, Ferrara says, machines also are sometimes checked on the basis of attorney complaints.

Because roadside breath tests are not "evidentiary," the department doesn’t regulate them, Ferrara said. They do keep a list of tests that are acceptable.

Alka Lohmann, chief of the department’s breath alcohol section, travels the state testifying for prosecutors and defense attorneys as an expert witness on the Intoxilyzer 5000.

Acid reflux, she says, is a common defense, but operating procedures and mechanisms in the machine prevent mouth alcohol from causing bad results.

Operators are trained to watch for burping for 20 minutes before the test, she said. By taking two samples two minutes apart, the operator and the machine would detect mouth alcohol, which dissipates so quickly that it causes different results, she said.

The department did change the jail’s Intoxilyzer program in October, she said, but that change did not affect its analytical programming or how the machine tests breath samples.

The update changed a prompt to read "department" instead of "Division" of Forensic Science as the agency was called until July, Lohmann said.

As for CMI Inc.’s source codes, she said, those are an industry secret, which as far as she knows, CMI Inc. has never given up.

"I don’t need the source codes to know it’s working properly," she said. "We test it to ensure it’s working properly."

But despite government assurances the machine is accurate, Keefer says he still wants to know from the manufacturer how the machine works.

Also, the fact that CMI has updated its machines, and now sells an Intoxilyzer 8000, makes him suspicious that Virginia’s machine may not be as accurate as possible.

"They’ve always said ‘it’s perfect,’" the attorney says. "Then they get a new one, and it fixes the problems they never admitted they had."