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ATTACKING THE INTOXILIZER

This article deals with methods to suppress the blood alcohol number versus the numerous attacks on the number as it relates to the intoxilizer. It is far easier to have the blood alcohol results suppressed during pretrial than it is to convince jurors the results are inaccurate. There are a number of requirements that must be met before the intoxilizer is admissible in Kentucky. Sources of these attacks come from the Kentucky Administrative Regulations, Kentucky Revised Statutes (KRS), and manuals from the Department of Criminal Justice Training at Richmond, Kentucky. These attacks are best advanced by motions to suppress for failure to follow standard operating procedures. The problem with these motions, at the onset is that you cannot with particularity state the grounds for suppression as required in the criminal rules. Generally, there is no documentation of what the officer did in running the breath test. These days most officers have body cams. The problem with body cams is the officer controls when the camera is recording and not recording. Body cams are frequently turned off after field sobriety tests and the arrest. As such, the administration of the intoxilizer is rarely on video. The motion to suppress, therefore, is not only a learning tool for a subsequent trial, but also the information needed to have the instrument suppressed.

The requirements for the admissibility of the intoxilizer are set out in Commonwealth v. Roberts, 122 S.W.3d 524 (Ky. 2003). This case clarifies some ambiguities in prior cases and is the current law on the admissibility of the intoxilizer. Roberts requires the following:

  1. That the machine was properly checked and in proper working order at the time of conducting the test;
  2. That the test consists of the steps and sequence set forth in 500 KAR 8:030;
  3. That a certified operator has continuous control by personal observation of the defendant for at least 20 minutes prior to test at the test site;
  4. That the test be given by an operator who is properly trained and certified to operate the machine; and
  5. That the test was administered according to standard operating procedures.

This case also points out that additional requirements are found in KRS 189A.103 and at 500 KAR 8:010 thru 500 KAR 8:030.

The following is a list of standard operating procedures that must be satisfied for the intoxilizer to be admissible. Defense counsel should review these in each case. Failure to follow these procedures should result in the suppression of the intoxilizer.

1. CALIBRATION OF THE INSTRUMENT. Calibration of the instrument is performed by a technician. This is required to be done once a month, but not to exceed 45 days. There are many instruments in the state but only a limited number of technicians; thus the 15-day window. The controlled analysis (Cal. check) is done by the simulator. Basic Breath Test Operators, Introduction to Breath Test Instrument, January 1, 2017. Volume 2, Chapter 1, p. 14; see also 500 KAR 8:020(2) (the examination is to be done by a technician trained or employed by the Kentucky State Police). Instruments are to be examined prior to being placed in service or after any repair of a malfunction.

2. ACCURACY. A breath alcohol instrument must be accurate within plus or minus 0.005 alcohol concentration units reading to be certified. This means the Cal check must be between .075 and .085 using a 0.08 solution to be accepted. Basic Breath Test Operators, Introduction to Breath Test Instruments, January 1, 2017. Volume 2 Chapter 1, p. 23

3. CERTIFIED OPERATORS. Only certified operators may run the intoxilizer. 500 KAR
8:010 sets out the criteria to become certified, and the certification is good for 2 years. After 2 years the certification expires and the person cannot run any tests until re-certified. Basic Breath Test Operator, Introduction to Breath Testing January 1, 2017, Volume 1, Chapter 4, p. 11, 18-19; see also KRS 189A.103(3)(b) (all breath tests shall be administered by a peace officer holding a certification as an operator of a breath analysis instrument issued by the Secretary of the Justice and Public Safety Cabinet).

4. AUTHORITY TO ADMINISTER INTOXILIZER. The officer must have reasonable grounds to believe that a violation of the DUI Statute, KRS 189A.010(1), has occurred in order to run the
test. See KRS 189A.103(3)

5. CMI MANUAL. A breath test must consist of a test performed in accordance with the manufacturer’s instructions for use of the instrument. The Secretary of the Justice and Public Safety Cabinet is required to keep available for public inspection copies of these manufacturer’s instructions for all models of breath testing devices in use in the Commonwealth of Kentucky. NOTE: This is the CMI manual not the DOCJT manual. See KRS 189A.103(4); see also Volume 2, Chapter 8, p. 4. The defense must obtain this manual to see all requirements from the manufacturer.

6. BREATH TUBE. Both the 5000EN and the 8000 instruments require the breath tube be felt to see if it is warm. This is to make sure there is no condensation which could contain alcohol in the breath test tube. If condensation is allowed to form it would include alcohol molecules, thus providing a less than accurate result. If it is not warm to the touch, the operator should check the plug at the base of the tube. It must be plugged in. It may take up to 30 minutes to completely heat up if it was unplugged. Basic Breath Test Operator, Skills Exam Preparation, Volume 2, Chapter 8, p. 7; Basic Breath Test Operators, Introduction to Breath Test Instruments, January 1, 2017. Volume 2, Chapter 1, p. 25, 41

7. SIMULATOR PADDLES. An operator should check to see on the 5000EN, with a simulator, that the paddles are spinning and the hoses are connected to the instrument. Breath Test Operator, Introduction to Breath Test Instruments, Volume 2, Chapter 1, p. 41

8. QUALIFYING QUESTION. This question is to be read before the Implied Consent Warning and before the 20 minute observation period. The question is, “During the next 20 minute period you are not allowed to eat, drink, smoke or place anything in your mouth or nasal passages. Do you have anything in your mouth at this time?” After asking this question visually check the subjects mouth for foreign substances. Basic Breath Test Operator, Introduction to Breath Test Instruments January 1, 2017, Volume 2, Chapter 1, p. 39, 41; Basic Breath Test Operators, Introduction to Breath Testing, January 1, 2017, Volume 1, Chapter 4, p. 21

9. IMPLIED CONSENT. At the time a breath, blood or urine test is requested, the person shall be read verbatim the Implied Consent Statute pursuant to KRS 189A.105 (2)(a). Basic Breath Test Operators, Introduction to Breath Test Instruments, Volume 2, Chapter 1, p. 41-44

10. TWENTY MINUTE OBSERVATION. A certified breath test operator must have the defendant under personal observation at the location of the test for a minimum of 20 minutes prior to the breath alcohol analysis. 500 KAR 8:030; KRS 189A.103(3)(a). If the defendant regurgitates, note time and start the 20-minute observation time over. If there is any interruption of the 20-minute observation start it over. Breath Test Operator, Introduction to Breath Testing, Volume 1, Chapter 4, p. 9; DOCJT 5000 Intoxilizer Manual Volume 1, Chapter 2, p. 10. The purpose of the 20-minute period is to make sure the defendant doesn’t burp, bring up stomach fluids or introduce anything into his mouth that may affect the test.

11. MOUTH PIECE. Always put the mouth piece on prior to pushing the start test button to begin the test. This is to insure that there is nothing in the mouth piece that would contaminate the subject’s breath test. There are air blanks before the test and before the subject blows through the mouth piece. If there was something in the mouth piece it would be detected during the air blanks and the instrument would have stopped the test and printed out a card that read “check ambient conditions”. Breath Test Operators, Introduction to Breath Test Instruments, Volume 2, Chapter 1, p. 26

12. MOUTH ALCOHOL. The slope parameter in the intoxilizer will be activated if the BA level has dropped by at least .006 grams of alcohol in 6/10’s of a second on the 5000 EN while the subject is blowing into the breath tube. On the Model 8000, mouth alcohol will be shown if the BA value drops by more than 5% lower than the maximum value reached during the blow. The question is, “What if the BA drops .005 grams in 6/10’s of a second on the 5000 or 4% on the 8000 or a similar situation?” The instrument may or may not show mouth alcohol, but can result in an erroneous blood alcohol level. If a mouth alcohol alert happens you must observe the subject for an additional 20 minutes before performing another breath test on the subject. Basic Breath Test Operators, Evidence Tickets, Volume 2, Chapter 4, p. 18

13. AMBIENT CONDITIONS. If any air blank doesn’t read .000, an “ambient conditions” warning will print out. This could be caused from smoke, cleaning products containing solvents, paint fumes, etcetera which may be blocking or absorbing infrared light. This may also occur if the subject is sitting too close to the instrument and the instrument is drawing alcohol when it is purged. The operator should locate the source causing the condition and eliminate it before initiating another breath test. Basic Breath Test Operators, Evidence Tickets, January 1, 2017, Volume 2, Chapter 4, p. 10; Basic Breath Test Operators, Introduction to Breath Test Instruments, Volume 2, Chapter 1, p. 20, 22. An operator must not not use disinfectant wipes on the instrument. Further, no individual should eat, drink or smoke around the instrument. DOCJT 8000 Manual Volume 1, Chapter 1, p. 18; DOCJT 5000 Manual Chapter 2, p. 15; Basic Breath Test Operators, Breath Test Instrument Lab, January 1, 2017, Volume 2, Chapter 3, p. 8

14. OWN ATTORNEY. This is part of the Implied Consent Warning. The operator must offer the defendant the opportunity to contact an attorney by reading the following, “You have at least 10 minutes but not more than 15 minutes to attempt to contact and communicate with an attorney. Do you wish to contact an attorney at this time?” The operator must provide reasonable assistance to the test subject if he wishes to attempt to contact an attorney. An operator must not recommend any particular attorney. Basic Breath Test Operators, Introduction to Breath Test Instrument, January 1, 2017, Volume 2, Chapter 1, p. 44

15. 2100 to 1 RATIO. Everyone does not have the same breath to blood ratio. The instrument assumes all people have a blood breath ratio of 2100:1. The breath to blood ratio has no bearing on body size or lung capacity. What determines it involves many factors such as a person’s hematocrit which is the number of blood cells per 1cc of tissue, body temperature and other things. The ratio can vary hour to hour and day to day. Any ratio except 2100:1 will affect the BA result. Ratios below 2100:1 will produce a lower BA level. Ratios can vary from 1100:1 to 3200:1. Basic Breath Test Operator, Introduction to Breath Testing, January 1, 2017, Volume 1, Chapter 4, p. 33-35

16. DEFENSE CHALLENGES. The following are some defenses recognized in the DOCJT lesson plans:

  1. The defendant was still absorbing alcohol at the time of the test; Lower level at time of driving (retrograde extrapolation);
  2. The defendant was wearing dentures at the time;
  3. Defendant had an elevated temperature;
  4. The officer did not follow rules for administering the intoxilizer;
  5. other substances can cause a positive result;
  6. Gerd;
  7. Test is inherently inaccurate; and
  8. The test is gender biased.

Basic Breath Test Operator, Introduction to Breath Testing, January 1, 2017, Volume 1, Chapter 4, p. 29

17. RADIO FREQUENCY INTERFERENCE. High amounts of radio frequency interference may affect the instrument. This can happen when a radio or cellphone is transmitting closely to the instrument. If detected, the instrument will stop the test and print the ticket showing “RFI”. The operator should locate the source of the radio frequency interference and remove it from the operational environment of the instrument before initiating another test. Basic Breath Test Operators, Evidence Tickets, January 1, 2017, Volume 2, Chapter 4, p. 12; see Volume 1, Chapter 1, p.18; see also Volume 1, Chapter 2, p. 20

18. OUT OF TOLERANCE LOW/HIGH. This occurs if the calibration check is below .075 or above .085 with a 0.080 calibrating solution. The operator should immediately run a second test on the instrument. If the second test fails outside of the tolerance range the operator should seek another testing instrument or request the subject to submit to an alternate alcohol concentration test. DOCJT 8000 and 5000 EN Manuals; Basic Breath Test Operators, Evidence Tickets, January 1, 2017. Volume 1, Chapter 1, p. 26-27 and Volume 1, Chapter 2, p. 28-29

19. INTERFERENT DETECTED. While the subject is providing a breath sample, the instrument detected a significant amount of a substance that absorbs infrared energy at the same frequency range as alcohol, such as acetone, toluene or methanol. There are many organic  compounds that can affect the machine. The instrument will stop the analysis, complete the mode sequence and print a ticket with “INT” beside the subject test. The operator should first consider this as a possible medical emergency and immediately run a second test. If the results are the same, the operator must seek medical attention for the subject. Basic Breath Test Operators, Evidence Ticket, January 1, 2017, Volume 2, Chapter 4, p. 19

20. PORTABLE BREATH TEST (PBT). The PBT is the last field test that should be run. If an officer uses the PBT first, the numbered result will be in his or her mind. This may then influence the officer’s subjective interpretation of other field sobriety tests. Officers can become too reliant on the PBT outcome and not consider other field sobriety tests. 2020 Basic Training Curriculum, October 1, 2019, Volume 2, Chapter 9, p. 13

21. POOR FIELD SOBRIETY TESTS. Advantages of the PBT: assist officers in deciding whether to arrest or not. The subject may not be under the influence of any substance. Rather, he merely could not perform other standard field sobriety tests in a satisfactory manner, and the officer is still unsure whether the subject is under the influence. 2020 Basic Training Curriculum, October 1, 2019, Volume 2, Chapter 9, p. 12

22. DEFICIENT SAMPLE/DEFICIENT SAMPLE ALCOHOL PRESENT. During the “please blow” mode, the subject has 3 minutes to provide an adequate breath sample. If the subject fails to do this, the portion of breath provided will be analyzed by the instrument. If any alcohol is present it will print out a ticket that says “deficient sample alcohol present”. If no alcohol is present, the ticket will print out “deficient sample”. This indicates that the parameters for a completed breath test were not met but the breath sample may have captured some alcohol. KRS 189A.005 states that in either event, the operator “SHALL” request blood or urine or both. A subsequent Implied Consent Warning must be read to the defendant at the site of the test. Basic Breath Test Operators, Evidence Tickets, January 1, 2017 Volume 2, Chapter 4, p. 15

23. UNSTABLE REFERENCE. This occurs when the instrument’s microprocessor is unable to obtain a stable voltage reference from the processer. The instrument stops the test and prints out “invalid test – unable to obtain stable reference”. The operator should initiate another test on the instrument. If the condition continues, the operator must notify the technician. Basic Breath Test Operators, Evidence Tickets, January 1, 2017, Volume 2, Chapter 4, p. 24

24. DO NOT PLACE ANY OBJECT ON TOP OF THE INSTRUMENT, DOCJT 8000 Manual, Volume 1, Chapter 1, p. 12; DOCJT 5000 Manual, Volume 1, Chapter 2, p. 15

25. VALID BREATH SAMPLE. The subject has 3 minutes to blow a breath sample. The sample must be a continuous blow. For the operator to get a completed test the subject must meet 4 parameters during the please blow mode. These are as follows:

  1. Minimum 4 second blow time;
  2. Minimum pressure 150ml per second;
  3. Minimum volume of 1.1 liters; and
  4. Homogeneous concentration of alcohol. This parameter is used to identify residual mouth alcohol. (This seems to imply that if these parameters are not met, the instrument cannot determine residual mouth alcohol).

Basic Breath Test Operators, Introduction to Breath Test Instruments, January 1, 2017, Volume 2, Chapter 1, p. 10-12, 49

27. SIMULATOR. The wet bath simulator temperature should be 34⁰ centigrade. This is supposed to match exhaled breath from the Defendant. However, most people are 35⁰ centigrade. Breath Test Operators, Introduction to Breath Test Instruments, Volume 2, Chapter 1, p. 53

On occasion the simulator Cal check will read above 0.080. The manual suggests that to correct this, the shown amount should be subtracted from the known amount to reduce the intoxilizer test result. In other words, the Cal check was 0.081 with a known value of 0.080 then, the intoxilizer should be reduced by 0.01. Basic Breath Test Operator, Practical Exercise January 1, 2017, p. 8

In short, there are many available challenges to the admissibility of the intoxilizer. It is essential for defense counsel to be familiar with the instrument, standard operating procedures, and available sources to successfully challenge test results through pretrial motions to suppress.

About Wilbur Zevely

Wilbur Zevely
Wilbur M. Zevely is a partner in the Florence, KY law firm Busald Funk Zevely, PSC. He has practiced law since 1972. He concentrates his practice in criminal law, domestic relations, and DUI cases. He has defended thousands of clients in criminal trials before Judges and juries. He has practiced throughout Kentucky and Southern Ohio. Mr. Zevely received his B.S. degree in Chemistry from the University of Cincinnati in 1968 with a minor in math. His J.D. is from Salmon P. Chase School of Law in 1972. Prior to entering the practice of law, he worked as a chemist for The Monsanto Co., under contract with the United States Atomic Energy Commission. For many years, Mr. Zevely, has lectured on DUI issues for the Kentucky Association of Criminal Defense Lawyers, (KACDL), the KY Bar Association, the Northern KY Bar Association, and the Kentucky Department of Public Advocacy. He taught for more than 10 years at the week long basic training course at Faubush, KY for the KY Department of Public Advocacy. He writes a regular column on DUI tips for the KACDL news letter. In the early 1970’s Mr. Zevely, incorporated “The 15th Judicial District Public Defender, Inc.,” this was the first State funded Public Defender program in the Northern KY area. Mr. Zevely ran the program for years. The program represented indigent clients in Boone, Gallatin, Grant, Carroll, and Owen Counties. Mr. Zevely along with retired Judge Stanley Billingsley authors the Kentucky Driving Under the Influence Law Book which is a West Law Publication. The book is rewritten annually, and has been published for 19 years. Mr. Zevely has served as director of the KACDL since its formation. Mr. Zevely is a member of the Kentucky Bar Association, the Ohio State Bar Association, KACDL, NACDL, and is admitted to practice in Federal Court for the Southern District of Ohio and the Eastern District of Kentucky. Mr. Zevely received the 2014 Distinguished Lawyer award from the Northern Kentucky Bar Association. He also received the 2015 Lifetime Achievement award from the Northern Kentucky Bar Association.

If you would like to contact the author, please visit: http://www.bfzlaw.com


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