DWI Breath Testing: “Smoking Gun” e-mail may Expose Intoxilyzer 5000 fraud! by Plano DWI attorney Troy Burleson

By Collin, Dallas and Denton County DWI Lawyer Troy Burleson

As I have reported here in recent posts, the house of cards that is the Intoxilyzer 5000 may indeed be ready to topple. First, a Washington State court ruled that breath tests results would not be admissible, and wrongfully convicted citizens may appeal their conviction, due to malfeasance by the state’s lab technicians. Now, a new “smoking gun” email may future expose the Intoxilyzer 500 as the fraud that it is!

According to a report from the Pioneer Press in Minnesota, Charles A. Ramsay, a DUI defense attorney, on Monday released a copy of what he calls the “smoking gun” e-mail from a BCA toxicologist to Intoxilyzer 5000 manufacturer CMI Inc. of Owensboro, Ky.

The e-mail, dated Sept. 27, 2006, indicates that the Intoxilyzer “on occasion” printed out different blood-alcohol readings than what it displayed on its screen and that the amount of air required to provide a breath sample varied depending upon the version of software running the machine.

Here is the Story in its entirety:

Minnesota / Lawyer: DUI technology is faulty Defense attorney says state knew of uneven performance

By Frederick Melo
fmelo@pioneerpress.com Article Last Updated: 06/09/2008 11:46:42 PM CDT Intoxilyzer 5000 — meet a supposed “smoking gun.”

A Roseville-based attorney maintains he has proof that more than 250 alcohol breath-test machines used by law enforcement officials in Minnesota are faulty and that the state has been well aware of the problem for months.

A spokeswoman for the Minnesota Bureau of Criminal Apprehension said not so fast – the machines work fine.

Charles A. Ramsay, a DUI defense attorney, on Monday released a copy of what he calls the “smoking gun” e-mail from a BCA toxicologist to Intoxilyzer 5000 manufacturer CMI Inc. of Owensboro, Ky.

The e-mail, dated Sept. 27, 2006, indicates that the Intoxilyzer “on occasion” printed out different blood-alcohol readings than what it displayed on its screen and that the amount of air required to provide a breath sample varied depending upon the version of software running the machine.

CMI updated the Minnesota version of its Intoxilyzer software in summer 2005. It was first awarded the contract in 1997.

“We performed a variety of tests under different conditions using each version and the results were not the same,” wrote toxicologist Pat Pulju in the e-mail to other state and CMI officials.

Ramsay said the machine might record a hard puff as a “test refusal,” which can carry greater civil and criminal penalties than failing the test entirely.

He said he represents multiple clients who were charged with gross misdemeanors after making honest efforts to blow as hard as they could into the Intoxilyzer.

“If you blew just as hard under the old software … you’re fine. You would not only give a sufficient sample, but … you’d pass the test. You’d go home. Nothing happens,” he said.

On Friday, Ramsay filed a motion to intervene in a federal lawsuit between Minnesota Public Safety Commissioner Michael Campion and CMI. The lawsuit seeks to force the manufacturer to release a copy of the computer software to the state. Campion is represented by the Minnesota attorney general’s office.

State officials had limited immediate reaction Monday. “The BCA has a high level of confidence in the reliability of the Intoxilyzer,” said Christine Krueger, a spokeswoman for the Minnesota Department of Public Safety.

Ramsay’s is just the latest salvo in a statewide push by DUI attorneys to examine and invalidate CMI’s software program.

Last month, the Minnesota Court of Appeals delivered a soft blow to two alleged drunken drivers who challenged their breath-test evidence by asking to inspect the patented computer code.

The decision overturns part, but not all, of the so-called “source code defense.”

A May 20 appeals decision found that the attorneys for the two Dakota County drivers did not make an adequate argument for why examining the Intoxilyzer software would help determine if the instruments are defective.

The appellants were Dale Lee Underdahl, of Northfield, and Timothy Arlen Brunner, of Farmington. The men were charged in Dakota County, in separate incidents, with driving with alcohol concentrations of more than .08 percent.

The appeals decision noted that while the defense has broad powers to compile evidence during the “discovery process,” previous decisions have found that lawyers cannot go on an undefined “fishing expedition.”

Across Minnesota, judges have reinstated dozens of revoked driver’s licenses and thrown out criminal charges against drunken-driving defendants as a result of the state’s failure to produce the source code, said Underdahl’s attorney, Jeffrey Sheridan.

Nothing in the latest court opinion prevents DUI attorneys from seeking the source code in the future, but the bar to justify such a request has been set higher, Sheridan said.

Judges in more than 100 cases, including the Minnesota Supreme Court, have attempted to force the state to turn over the computer program for inspection.

“We do plan to seek further review of this decision from the Supreme Court,” Sheridan said. “It’s completely contrary to what the Supreme Court has already said. … We’ll keep slugging it out.”

State officials have said that although they contracted CMI for a Minnesota model of the machine, the state does not have access to the instrument’s patented source code and is unable to disclose it.

Frederick Melo can be reached at 651-228-2172.

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