NY Man arrested for DWI had BAC of .043%, five times legal limit

Man arrested for DWI in New York had BAC more than 5 times the legal limit

Catskill, NY

State police say a Hudson Valley man is being held for observation at a hospital after he was arrested for driving with a blood-alcohol level five times the legal limit.

Troopers with the Thruway detail say 36-year-old Brian Tumas of Kingston was pulled over on Interstate 87 Tuesday afternoon when he made an illegal U-turn in the town of Catskill, 30 miles south of Albany.

Troopers charged him with driving while intoxicated and resisting arrest.

Police say he was taken to Kingston Hospital after troopers determined his blood-alcohol content was .43 percent, more than five times the .08 level for DWI under state law.

Tumas was given appearance tickets for Catskill Town Court. It wasn't known Wednesday if he has a lawyer

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Prosecutors: Invalid DUI BAC tests in Colorado Springs double

Colorado Springs, CO

The number of flawed Colorado Springs police DUI tests has doubled to 167 since a crime lab audit last year discovered that some blood-alcohol results were inflated, the Colorado Springs Gazette reported.

The Police Department launched internal and external investigations after reporting Dec. 11 that a routine audit revealed errors in 82 initial cases.

El Paso County prosecutor Frederick Stein confirmed the doubling of flawed cases to The Gazette, but he could not say yet what the impact of the erroneous tests might be on prosecution of those criminal cases. He said the district attorney's office hopes to have a report compiling those outcomes within the next two weeks.
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At the time, the department started re-testing about 1,000 blood alcohol test results taken since January 2009, The Gazette reported. Meanwhile, prosecutors contacted individuals in the cases that were based upon the incorrect test results.

The Colorado Bureau of Investigations is conducting the external investigation and the Police Department is conducting its own internal review.

While the department review isn't completed, police spokesman Lt. David Whitlock told The Gazette: "We've narrowed it down to the point where we believe it is likely a human error. We believe very strongly that it’s not an equipment failure or something inherent in the lab itself."

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South Dakota woman prosuectors claim had record BAC of .709 pleads not guilty to DWI charge

Sturgis, SD

The Sturgis woman who prosecutors say was arrested with a blood-alcohol level almost nine times the legal driving limit, has pleaded not guilty in Sturgis to driving under the influence.

Marguerite Engle, 45, entered the plea Tuesday in Meade County Magistrate Court in Sturgis. Engle was arrested Dec. 1 when she was found passed out behind the wheel of a stolen delivery van along Interstate 90.

Meade County State's Attorney Jesse Sondreal said Wednesday that other charges against Engle will be presented to a grand jury on Thursday, Jan. 14. Those include driving under the influence, misdemeanor marijuana possession, possession of drug paraphernalia and not having a valid driver's license.

Sondreal earlier said Engle had a blood-alcohol level of .708 percent, possibly a state record, when she was found behind the wheel of the vehicle parked on I-90.

A South Dakota Highway Patrol trooper discovered Engle passed out behind the wheel of a delivery truck reported stolen from Rapid City.

Her blood-alcohol level was almost nine times South Dakota's legal limit of .08 percent.

Engle's reading may be the highest ever recorded in South Dakota, Sondreal said.

Sondreal said a state chemist recalled a sample that tested .53, but nothing higher, in his more than 30 years on the job.

Dr. Robert Looyenga, who recently retired from the Rapid City Police Department's forensic laboratory, told Sondreal that the highest blood-alcohol sample he tested measured .56 percent.

Sondreal's research indicates that a blood-alcohol level of .40 is considered a lethal dose for about 50 percent of the population.

"Engle's was almost double that," Sondreal said.

After she was found, Engle was hospitalized and freed on bond.

She failed to appear in court on Dec. 15, but Sturgis police located her Jan. 4 in another stolen car sitting in a ditch along S.D. Highway 34 near Fort Meade.

Engle was arrested for second offense driving under the influence and taken to jail. She is being held without bond.

Sondreal said Engle has been living in a hotel after recently moving here from Minnesota.

Engle is most likely facing charges in Pennington County since both vehicles were stolen in Rapid City, Sondreal said.

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Intoxilyzer alcohol breath test results thrown out in Flordia counties

Sarasota County, FL

Judges realize that the crux of the argument in favor of the Intoxilyzer is "just trust us" and they aren't buying it anymore.

Two Sarasota county judges have struck another blow to the breath-test machines police use to catch drunken drivers, throwing out the results in 72 more DUI cases.

Like other legal battles over the Intoxilyzer 8000, the latest one centers on technical aspects of how the machine works.

Defense attorneys questioned exactly how the machines use an infrared spectrum to detect alcohol in a driver's breath. When prosecutors could not answer detailed questions about the machines, the judges threw the test results out. Now the DUI cases are stalled while prosecutors appeal the ruling.

The cases join about 450 DUI cases in Sarasota and Manatee counties that already have been delayed for up to four years because defense attorneys questioned the reliability of the machines, and judges have ruled that the defendants should have access to the computer code inside the Intoxilyzer.

Judges threw out breath-test results in those cases when the manufacturer refused to turn over the computer code to defense attorneys. Prosecutors appealed and lost, and the cases are now set to proceed to trial.

The rulings have not stopped law enforcement from using the Intoxilyzer 8000 to test suspected drunken drivers. The breath-test results are a key piece of evidence in DUI cases, but even in cases where the tests results are thrown out, prosecutors can still try to prove the case using testimony from law enforcement officers who administer field sobriety tests.

Defense attorneys across the state have made similar arguments, but the rulings last week are the first throwing out breath-test results based on the infrared spectrum.

In this latest challenge, prosecutors could not convince judges that the Intoxilyzer 8000 measures alcohol in the breath at exactly the same wavelength in the infrared spectrum that the manufacturer says it does.

Without that, prosecutors cannot prove the machine is the same one approved for use in Florida, the judges ruled. And state law only requires drivers to submit to breath tests using an approved machine.

"These are the rules they need to follow to make sure they have a reliable machine," said Venice defense attorney Robert Harrison, who has led the fight against the Intoxilyzer 8000s. "They can't just pick any machine."

County judges David Denkin and Kimberly Bonner issued the ruling on these 72 cases, but two other judges heard the same arguments and could rule similarly on another 27 cases, Harrison said.

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DWI machine’s source codes will soon be given to MN defense attorneys

Minneapolis, MN

Attorneys of suspected drunken drivers can breathe easier. The breathalyzer source code impasse is over.

Monday, the Minnesota Department of Public Safety (DPS) announced it had reached a settlement with the manufacturer of the Intoxilyzer 5000EN, the country’s most widely used alcohol detector for suspected drunken drivers.

Defendants in drunk driving and implied consent cases will now have access to the computer codes used to calibrate the breath machines.

A recent Minnesota Supreme Court decision granted them that right, throwing DWI prosecutions into turmoil.

Defense attorneys wanted the codes to see if their clients had been wrongly convicted due to a faulty mechanism in the machines, or were wrongly charged.

CMI, the Kentucky manufacturer, contended it was a trade secret. DPS sued the company in federal court over the codes, which law enforcement officers don’t have.

It appears, however, that access to see the actual codes will be provided only at company headquarters out of state. But attorneys are entitled to view a hard copy of the code in Minnesota, and CMI will provide up to $50,000 for experts to interpret and analyze the highly technical computer codes that run the machine. CMI will have to defend it under attack by defense attorneys.

The settlement is contingent on court approval and a hearing June 11. “We are very pleased that we have given the defense attorneys everything they need to analyze the source code,” said DPS Commissioner Michael Campion in a news release. “The settlement should finally put to rest the issue of the Intoxilyzer’s reliability.

“Law enforcement needs the Intoxilyzer 5000EN to keep drunk drivers off our roads.”

According to DPS, there were 38,699 impaired driving incidents that occurred in Minnesota in 2007 and were entered onto people’s driving records.

The Intoxilyzer 5000EN was used in approximately 24,000 of those cases.

Hubbard County Attorney Don Dearstyne said he’s not sure what the case means for future prosecutions until he’s seen the decision.

Currently one defendant is asking for the source code in a Hubbard County DWI arrest.

“Nothing will happen until after June 11,” Dearstyne said.

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Court rules that DWI defendants can request Intoxilyzer 5000 code

Park Rapids, MN

No blow, no mo'. Get stuck or pee in a cup. What do you think the new Minnesota DWI slogan should be?

Suspected drunken drivers in Hubbard County will either have to urinate into a cup or give a blood sample after being pulled over if they flunk a field sobriety test.

That’s because Hubbard County Attorney Don Dearstyne has asked law enforcement agencies to stop using the Intoxilyzer 5000 breath machine in the wake of a recent state Supreme Court decision that has wide-reaching ramifications for past and future DWI cases.

The court ruled in late April that defendants have a right to request the breath test machine’s “source code” to determine if it has been calibrated correctly and the results are reliable.

But there’s a problem inherent in that ruling. Cops don’t have the secret codes. Intoxilyzers are made by a private Kentucky company that refuses to divulge its trade secret as to how the machines are calibrated.

“The source code is not in any county attorney’s possession,” said Dearstyne, reiterating the difficulty now facing prosecutors. “It belongs to CMI, which manufactures the Intoxilyzer.”

DWI suspect Joshua Allen Zubke, facing two counts of DWI and one count of careless driving in Hubbard County, is the first defendant hoping to capitalize on what could become a systemic loophole.

His attorney, Blair Nelson, of Bemidji, wants to either get the machine blueprints and expose deficiencies in it, or wear prosecutors down to the point they have to dismiss the charges because they can’t produce the source code.

Dearstyne, an assistant attorney general and Nelson will be filing briefs Friday before Judge Robert Tiffany on their opposing positions.

The larger ramifications are that prosecutors throughout the state could be stymied by the ruling and be forced to dismiss hundreds, perhaps thousands of pending DWI cases.

The Supreme Court bought into the argument that if voting machines could have faulty source codes as found in the Minnesota Senate race, so, too, could breath test machines be flawed.

Blood-alcohol tests will back up the Bureau of Criminal Apprehension lab as prosecutors await results of the blood or urine samples, Dearstyne worries. The cost will be enormous at a time when the state is strapped financially and the lab is already overloaded, BCA officials said.

There are 260 Intoxilyzers in use throughout the state, said Department of Public Safety spokesman Andy Skoogman. DPS, which oversees the BCA, is currently embroiled in a federal lawsuit with CMI to get the codes, which the company maintains are proprietary information that, if revealed, would put the company at a competitive disadvantage, or out of business.

DPS says 80 percent of Minnesota DWI cases involve the use of an Intoxilyzer test.

Defense attorneys like Nelson want the codes to determine the machine’s reliability. Dearstyne believes that argument is a red herring and cautions: Be careful what you wish for.

“In one Minnesota case the defense did obtain the source code, but they had to sign a non-disclosure, protective order not to reveal it.” He said. “That was a couple years ago. Interestingly enough, once they got the source code they came in and pled the case.”

And, he said it will take extensive testimony from a computer geek to explain what the “thousands and thousands of printout pages of computer codes are. I just can’t see what the advantage is to the defense bar and I used to be a defense attorney.”

Dearstyne also used to be a cop. “I ran thousands of Intoxilyzer tests as a cop. It’s an incredibly accurate machine,” he maintains. In test comparisons with blood samples, he said the machine was “surprisingly accurate.”

CMI Inc.’s Web site stands by its machine, asserting: “No unproven technology here!”

“Right now we’ve fortunately got, as part of the field sobriety, to give them a portable breath test (PBT) so that at least gives us a thumbnail of what their blood alcohol content is,” Dearstyne said.

“It’s not admissible in a trial except in a refusal case but at least it gives us information enough to do the charging and then we just await the results of the lab. Then we amend the complaint to comport with what the test is. It’s a lot of extra work.”

And that may be what Nelson and Zubke are banking on. They don’t have an automatic right to the code. The Supreme Court ruling says they must request the code and show it is essential to proving Zubke’s innocence before Judge Tiffany will weigh the request.

“Until the federal lawsuit is settled, in the meantime it will cost the state of Minnesota, which can’t afford it, thousands and thousands of dollars in defending this type of action,” Dearstyne said.

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Minnesota Supreme Court rules DWI defendants have right to Intoxilyzer breath test machine source code

Minneapolis, MN

"...an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer" - MN S.Ct.

The breath alcohol test manufacturer says, "Just trust us." They also said, "The check is in the mail," "I'll respect you in the morning," and "It's not about the money, it's a matter of principle."

Note: The company's other product is pictured above.

Minnesota may be forced to drop thousands of driving-while-impaired cases and change the way it prosecutes others in the wake of a state Supreme Court ruling Thursday, prosecutors and defense attorneys agreed.

The state's highest court ruled that defendants in drunken-driving cases have the right to make prosecutors turn over the computer "source code" that runs the Intoxilyzer breath-testing device to determine whether the device's results are reliable.

But there's a problem: Prosecutors can't turn over the code because they don't have it.

The Kentucky company that makes the Intoxilyzer says the code is a trade secret and has refused to release it, thus complicating DWI prosecutions.

"There's going to be significant difficulty to prosecutors across the state to getting convictions when we can't utilize evidence to show the levels of the defendant's intoxication," said Dakota County Attorney James Backstrom.

"In the short term, it's going to cause significant problems with holding offenders accountable because of this problem of not being able to obtain this source code."

Law enforcement officers can still have a motorist's blood-alcohol level determined through blood tests or urinalysis, but that option comes with a pricey, time-consuming caveat: Most of those tests are done only in the lab run by the Minnesota Bureau of Criminal Apprehension in St. Paul.

"The BCA labs are overwhelmed now with their current workload, and I'm not sure they
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can handle doing blood and urinalysis tests in all DWI cases in Minnesota," said Backstrom. "It's going to be a big problem."

"I think there's going to be a lot more blood and urine tests asked for," said Derek Patrin, an attorney involved in the cases decided by the Supreme Court. "And that will back up the BCA. They're short-staffed already, and with the budget crisis we've got already, well, that's one of the reasons they wanted to use the Intoxilyzer in the first place. It was inexpensive to use."

Andy Skoogman, a spokesman for the Department of Public Safety, the BCA's parent agency, said officials there felt it was "premature" to stop using the Intoxilyzer. But he said the lab would be able to handle the workload if police agencies switched to blood tests and urinalyses.

"The BCA will make adjustments," he said. "We'll look at retraining staff and perhaps look at purchasing more test kits until this situation is resolved."

The Intoxilyzer 5000EN is the standard device used by Minnesota police to determine if a driver is impaired. The state bought 260 of the machines from the manufacturer, CMI of Kentucky, in 1997, and state law presumes the devices' results to be reliable.

The device is used with nearly eight of every 10 suspected drunken drivers who are tested in Minnesota.

But defense attorneys have argued that if they can't examine the source code, the computer program that runs the machine, they have no way to tell if the Intoxilyzer is reliable. District judges across Minnesota have handled defense requests for the source code with a patchwork of rulings: Some say a defendant has a right to examine it; others say it isn't relevant.

The Supreme Court's ruling came in two driving-while-impaired cases that Backstrom's office prosecuted. In each, district judges ordered that the source code be turned over to the defendants, but when Backstrom appealed to the Minnesota Court of Appeals, the rulings were overturned.

The appeals court said the defendants hadn't shown why getting the source code was relevant to their guilt or innocence.

But the Supreme Court said that at least one of those defendants showed that the code was relevant. The court noted in its 18-page ruling a list of evidence that defense attorneys may now use as a blueprint to request the source code.

Police had stopped the defendant, Timothy Arlen Brunner, 38, of Farmington, in July 2007 and the Intoxilyzer showed his blood-alcohol content was 0.18. Minnesota law presumes that a driver with a concentration greater than 0.08 is impaired.

Patrin, his attorney, asked a district judge to order prosecutors to turn over the source code. He accompanied his request with a memorandum and nine exhibits. Among them: a computer science professor's testimony that defects had been found in the code used in voting machines, as well as a report saying problems had been found in the code used in the breath-testing machine used by police in New Jersey.

The Supreme Court said Brunner's submissions "show that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner's guilt or innocence."

Skoogman, the Department of Public Safety spokesman, said the agency was disappointed in the ruling.

"We feel it is premature at this stage of the game for our law enforcement partners to test for only blood and urine," Skoogman said. "We continue to stand by the Intoxilyzer and the accuracy of the test results. Our message to law enforcement is to stay the course at this point as we examine our options."

The state's access to the source code is the subject of a separate lawsuit in U.S. District Court. Hearings are scheduled in the case May 22 and June 4.

Backstrom said the source code issue would haunt prosecutors until it is resolved, and the Supreme Court decision makes things worse.

"I believe that this decision is a significant setback to law enforcement's ability to protect our communities from drunk driving, at least in the short term," he said. "We're not going to be able to use the Intoxilyzer machine until we get the source code."

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Virginia backs down from drunk driving charge after attorney threatens to test accuracy of breathalyzer machine

Fairfax, VA

Questioning dogmatic faith in the machine...

A Fairfax County, Virginia General District Court judge earlier this month backed away from driving under the influence of alcohol (DUI) charges filed against a motorist after a defense attorney cast doubt on the accuracy of the county's breath testing machines. Police and courts often entrust machines like the ten-year-old Intoxilyzer 5000 with the authority to exonerate or convict a motorist of serious charges that carry significant monetary penalties, loss of license and jail time. Richmond DUI attorney Bob Battle found that this particular machine, which is being phased out in Virginia, has a significant weakness.

"When I got the records of the machine, it showed that one of the motors -- it's called a chopper motor -- had been replaced," Battle explained. "I found out that Virginia bought a bunch of replacement motors from random companies and they couldn't even tell you what motor was in there... it's very important what they are, and if they measure that the Ohms that they use, the frequency, is different than the original, it's going to cause the whole contraption that is this Intoxilyzer 5000 to be inaccurate."

Electrical engineer Thomas Workman, a former quality manager for Hewlett Packard, explained the importance of this particular motor to the Intoxilyzer 5000.

"If a replacement motor rotates at a faster RPM, then the processor may not have enough time to complete all the computations it must perform each revolution of the wheel (since there are more computations that must be done, since there are more revolutions of the wheel per unit of time)," Workman wrote. "Make the motor turn slower and the problem is that the software thinks that slopes are not being met when they should be, making the mouth alcohol detector faulty."

Although the general principles behind the machine's components are well known, the software used to generate the final calculation that determines guilt or innocence is held to be a "trade secret." Manufacturer CMI Inc. has refused to disclose the source code that would allow an independent analysis of the device. The state Department of Forensic Science guidelines only recommend testing Intoxilyzer machine components with an oscilloscope -- something the state has never done.

Presented with the evidence on the motor issue, the judge in the Fairfax County case agreed to allow experts to test the breath machine for accuracy. To avoid this, the prosecutor offered to reduce the DUI charge to reckless driving allowing the accused to keep his license -- a deal too good to turn down. Battle believes one day the machine will eventually be tested.

"I sincerely believe it's going to be like that scene from the Wizard of Oz," Battle said. "Once they roll back that curtain, they're going to find that this machine is not the perfect machine they try make it out to be -- that this is an outdated contraption. That's why Virginia, when they contracted for the new replacement machines, one of the conditions was that it couldn't have this type of motor in it."

In 2007 the General Assembly appropriated $1.8 million to replace the Intoxilyzer 5000. At the time lawmakers argued that replacement was necessary because machines like the Intoxilyzer were "dated, unstable and unreliable."

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RI cops arrest man for DWI, claim .491 blood alcohol level

Providence, RI


"Our only assumption could be that the person has a serious alcohol problem."

It would be much more realistic to assume that the BAC reported was the result of operator error and/or mechanical/electronic failure of a machine that's accuracy is questionable under the best of circumstances.

State Police arrested a man early Tuesday whose blood alcohol level allegedly was .491, more than six times the legal limit, which they believe is the highest ever recorded in Rhode Island for someone who wasn't dead.

The man, 34, was arrested after he drove into a highway message board on Interstate 95 in Providence, Maj. Steven O'Donnell said.

After police arrived, the man had trouble getting out of the car, then grabbed it and refused to move, forcing troopers to carry him to the breakdown lane before taking him back to their barracks, O'Donnell said.

A Breathalyzer test showed the man had blood alcohol readings of .489 followed by .491, Kobierowski said, the highest readings anyone at the State Police or the Department of Health could remember for someone who didn't end up dead.

The legal limit in Rhode Island is .08. A blood alcohol of .3 is classified as "stupor," .4 is "comatose" and .5 is considered fatal, according to the health department.

"Our only assumption could be that the person has a serious alcohol problem," O'Donnell said. "The person's lucky they survived. There's no doubt he would have gotten killed or killed someone if he had continued on the route he was taking."

The man was taken to Rhode Island Hospital where he was put in the detoxification unit and sedated, O'Donnell said.

He was scheduled to be arraigned later Tuesday on charges of drunken driving and resisting arrest.

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Tucson judge tosses out alcohol breath tests in 49 DUI cases

Tuscon, AZ

Kudos to Judge Berning for requiring the curtain be pulled back so defense lawyers can expose the Wizard...

A judge in Tucson has tossed out alcohol breath tests in 49 DUI cases and a defense attorney says the ruling could have widespread implications.

City Court Judge Thomas Berning's ruling says the breath tests are inadmissible because the company that makes the machine hasn't made its inner workings available to the defense.

James Nesci, one of the defense attorneys involved in the cases, says there are 50 to 70 pending cases before other judges that were waiting for Berning's ruling.

The ruling doesn't dismiss the cases entirely, just the breath tests.

The Tucson Citizen reports on its Web site that the ruling also could potentially affect every alcohol breath test conducted in the state since Dec. 1, 2006. That's when Arizona adopted the Intoxilizer 8000 machine made by CMI.

Deputy City Attorney Laura Brynwood says prosecutors will appeal Berning's ruling within the next 14 days.

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New Jersey Supreme Court reinstates DUI breath test machine

Trenton, NJ

Note how the concern expressed was not whether 10,470 DUI defendants could have been convicted wrongfully, but that the challenge to the breath test "put millions in fine revenues at risk." Therein lies both the true motive and problem with the DWI/DUI industry.

The Supreme Court of New Jersey on Monday reinstated the use of breath tests in convictions for driving under the influence of alcohol (DUI). The court faced a challenge to the reliability of the Draeger Alcotest 7110 breathalyzer machine from twenty defendants who combined efforts to create a sophisticated attack on the device. A total of 10,470 DUI cases had been put on hold over the course of the three-year trial -- putting millions in fine revenue at risk. The court acted to uphold the convictions.

"We conclude that the Alcotest... is generally scientifically reliable, but that certain modifications are required in order to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute," the unanimous court wrote in brushing aside the accuracy concerns.

At issue is the fact that the Alcotest machine does not directly measure the blood alcohol content (BAC) of its subject. Instead, the device estimates BAC by performing mathematical calculations on breath readings. If the calculation is not made properly, an innocent motorist can be found automatically guilty of a serious crime.

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