DUI Breath Testing in Georgia

In the state of Georgia the breath test is being used today is the Intoxilyzer 5000. This device is the one you would have been tested on if you were tested by the police on a breath machine. This is the only one that is an evidential test. I’ve had these machines since they came on board in Georgia back in 1995. This is the latest version, the 6801 or the 68EN series, and this is a device that is used to get an evidential breath test.

The Intoxilyzer 5000, is the oldest piece of equipment used in the United States for breath testing. Even though it was once was used in more than 30 states, it is only used and a handful of states now because those states do not have the money to replace it.

The Intoxilyzer 5000 has many more limitations, that’s the word used in the breath testing program in the state of Georgia. Limitations mean that it is exposed to problems that would not be encountered if you were drawing blood. Let’s just say you have dentures and use an adhesive to put them in which is porous. That material when you’ve been drinking wine or any other type of alcohol can hold alcohol according to some tests done in the state of Wisconsin for an hour or more and get positive readings.

It could skew the reading enough to get you in trouble with a reading above the legal limit. If you have dentures or if you have pockets from where you had your wisdom teeth pulled or any type of opening that alcohol can sit in and cause problems. If this is the case, you need to let your attorney know. That is one of the ways that the machine is limited and one of the ways that it could give false readings. Getting a full health profile on you is important and that’s what we do in every case with every client.

This device does not use sophisticated equipment. The pump that clears the chamber each time is the same $2 pump you get on an aquarium if you need to get an aquarium pump. The equipment in here is not sophisticated. It has got a nice hard shell but even that hard shell does not prevent radio frequency interference.

This machine it was invented so long ago, around 1982 when the patent was obtained at least, this machine did not have cell phone rays to deal with or PDA’s. That is, anything with current radiation on it. When it was invented we did not have cell phones. They just did not have to do it because it was not out there. The machine will actually read positive as though alcohol is in it from a cell phone being on.

The Intoxilyzer 5000 has a digital readout. You can see this as it is warming up, but as you blow into this device the machine reading will go up higher and higher and if you were allowed to see it because you’re standing in front of the machine, many people would stop blowing if they saw the numbers go up. The police officer will block the view from you and will look at the numbers.

By doing this and coaxing you to blow longer and harder, especially when the officer has seen the first result and is waiting to see the second result. He or she knows they have to give a result within a .020 of the first reading. They will keep you blowing until it matches up so they can get a valid reading.

That is a manipulation of this device that should not be allowed. That number, whatever the numbers are, should be blocked out and not shown to the operator and blocked from your view because the person who is running the machine is manipulating your results. That is not done on any other kind of forensic test. You are not going to have DNA that is manipulated. You are not going to have blood manipulated.

In Georgia and the people who run the breath test program do not seem to care that the officer can cause your result to be higher just by causing you to blow longer.

Presently in the United States there’s some litigation going on challenging this machine called “source code litigation.” The company that makes this is under court order from Minnesota, Florida, Arizona, Kentucky (their own state), and many other places to turn over the source code to this machine, because we found evidence in this machine, that it does not work properly. The problem with it is they refuse to turn it over. Even at the cost of $3,200 a day in one Florida case with one Florida judge they have not turned it over. The fines are now well over $1 million that they have accumulated.

The state of Minnesota ordered this machine to have the source code turned over and the company refused and now the attorney general of Minnesota has filed a federal lawsuit. To this day not one single state, not one single court, not one single agency outside the company has ever seen the source code.

Every Intoxilyzer 5000 that was ever made has a computer database. The computer database is accessible by either a modem or can be downloaded periodically using a laptop or some other computer device. The state of Georgia not only does not use the database to see if the machine is working correctly on each and every test, but they have never even purchased or even taken the free copy of the software to keep up with the data so that a citizen who thinks the machine malfunctioned could go back and check the data.

In places like Florida, South Carolina, and Arizona the data is kept on every single test and has been instrumental not only in winning cases but in proving that some officers have actually caused the machine to malfunction on purpose, causing citizens to be convicted with that false information.

The Intoxilyzer 5000 has had a controversial history among DUI defense lawyers. Georgia continued to use these units long after they were deemed to be outdated; in fact, the technology is over 25 years old. There have also been lawsuits filed against the manufacturer asking it to turn over the source code so the validity of its readings could be assessed; however, CMI refused to do so, causing Minnesota to overturn dozens of suspended/revoked driver’s licenses.

Georgia law enforcement agencies could start using the Intoxilyzer 9000 on January 1, 2013, when it was first approved for use as an evidential breath test. All agencies must incorporate the Intoxilyzer 9000 unit by December 21, 2015, as any breath tests administered on the Intoxilyzer 5000 after this date will be inadmissible in court.

Police departments must also ensure that their breath test operators obtain a permit to conduct tests on the Intoxilyzer 9000, as possessing a permit for the older device does not authorize holders to use the latest model. The Georgia Bureau of Investigation has created a course to help test operators transition to the Intoxilyzer 9000.

The Intoxilyzer 9000 possesses a number of update features that the 5000 version lacks. For example, the unit is capable of retaining breath test data and placing it on a centralized server. The user interface also uses a 7″ color touch screen, rather than the Intoxilyzer 5000’s more antiquated display.

Even though the Intoxilyzer 9000 may come with all of the bells and whistles, the fact is that it is still a machine; and, as such, is prone to problems. Operator error, medical conditions, and calibration problems can still arise, which means fighting a DUI charge is still very much a possibility.

To ensure that we provide the best representation possible to our clients, our firm is committed to getting training on this newest breathalyzer test and learning about the updated operator guidelines so we can conduct thorough investigations.