Challenges to Blood Alcohol Test Results in DUI Cases Mounting
By: Mary Ann Pekara
Blood alcohol or breath alcohol content test results have always been a potential weak point in DUI prosecutions. DUI defense attorneys have long tried to exclude results for a variety of reasons: because breath test machines weren't as accurate as blood tests, or because certain machines could give false positives based on other substances, or because machines hadn't been calibrated. The list of possible problems with blood or breath alcohol tests in DUI cases has always run long.
Lately, though, the challenges have become more sweeping, with case after case promising to impact dozens, hundreds, even thousands of additional DUI cases.
Ohio Hospital Blood Testing May Not be Admissible
Ohio processes were shaken in the fall of 2005 when an Ohio Supreme Court ruling excluded many blood tests conducted in hospitals. Blood drawn for medical purposes could not be introduced as evidence in a DUI case unless the state demonstrated that the hospital had substantially complied with the state health director's DUI testing standards. Even when blood had been drawn at the request of law enforcement, if the results were challenged, the state would have to prove substantial compliance.
Use of Alcohol Wipe on Skin Results in Dismissal
Another procedural question arose in January, when State Representative Charles Portwood's attorneys succeeded in getting his DUI charge dismissed because the nurse who had drawn his blood had used an alcohol wipe to clean his skin. Although testing seems to indicate that alcohol on the skin has no impact on the results of a blood alcohol test, Missouri law requires that the skin be cleansed with a "non-alcoholic antiseptic".
Other states, including Illinois, mandate the use of non-alcoholic disinfectants for blood alcohol testing to be used in DUI cases. These rules have been little enforced in the past, and many experts agree that the accuracy of the testing isn't affected by the use of alcohol wipes. Still, the publicity surrounding the dismissal of Representative Portwood's DUI charge may have opened the door to more challenges and stricter enforcement of the procedure.
Intoxilyzer 5000 Challenged-and Manufacturer Refuses to Release Information
In a year already full of challenges to the validity and admissibility of various blood alcohol and breath alcohol tests, the debate surrounding the Intoxilyzer 5000 has the potential for the most dramatic impact. According to the manufacturer's website, the Intoxilyzer 5000 is used in twenty states. It's the test of choice throughout the state of Florida, where a legal battle is underway that may exclude all Intoxilyzer 5000 results.
In November 2005, a Sarasota court ruled that prosecutors had to make the source code for the Intoxilyzer 5000 available to a defense expert. That information would allow the defense expert to test and assess the accuracy of the machine. Prosecutors, however, soon found themselves in a bind-they didn't have the source code, and the machine's manufacturer refused to disclose it.
The open question as to the machine's reliability and the apparent lack of any way to obtain the information necessary to answer that question has brought a number of cases grinding to a halt, and opened the door to a rush of possible DUI appeals. Perhaps more significantly, it's called into question the future admissibility of the Intoxilyzer 5000-and any other breath alcohol testing machine that runs on proprietary software.
Impact Still Uncertain
In Ohio, some law enforcement officers anticipate that the legislature will act to close the "loophole" created by the state Supreme Court ruling. Laws on alcohol wipes will undoubtedly be revisited in a number of states. Both of those issues will likely be settled one way or the other in the near future-either the challenges will be laid to rest with new law, or the procedures will be changed.
The problems raised by the Intoxilyzer cases, though, may prove much more difficult to address. So long as law enforcement agencies rely on equipment produced and controlled by private companies over which they have no control, the door to this kind of conflict will remain open. The defendant's right to fully confront the evidence against him in a DUI prosecution will collide full force with the proprietary rights of the manufacturer, and it is impossible to predict the long-term outcome-or even the outcome of the hundreds of cases already hanging in the balance.