Are Breath Tests Accurate? The NH View.

I recently wrote an opinion piece that was published by the Caledonian Record on November 7, 2019 focusing on breath testing accuracy in NH. 

It is important to understand that CMI, Inc. not only refuses to provide information to a defense lawyer but also ignored requests for information from the NY Times reporters.

Breath Testing is it Accurate, Reliable and Precise? NY Times Takes it up.

Breath Testing is widely used in United States and in NH.  In fact NH has recently spent millions to update the breath machines it uses to convict drunk drivers.  The new machine used in NH is called the Intoxiylzer 9000 pictured below, made by a company called CMI.  CMI and the State of NH refuse to provide schematics of the machine or allow defense lawyers and their experts to test the accuracy, precision or reliability.  



The title of the Times series is illustrative of the power of a breath test, but should we trust the results without the actual technical specifications?  Would you believe a number generated by a machine that the operator and manufacturer refuse to share its range of uncertainty? 

  The New York Times has recently created a weekly TV series to determine if breath testing should be trusted.  Episode 18: Guilty by Machine.

 

NH Rejects Attorney General for Supreme Court Justice

The Executive Council has refused to confirm Attorney General Gordon MacDonald as chief justice of the New Hampshire Supreme Court.  State Counsil Rejects Attorney General.

This is the first time in my memory that the Executive Counscil has refused to confirm a justice to the Supreme Court.  It is interesting that in this time of intense political bitterness how the norms of professionalism appear to have shifted.  The vote was 3-2 to deny along polical lines.  

In talking with a collegue who I disagree with politically, it strikes both of us how even state politics appears to be based on division and acrimony instead of getting solutions and creating consensus.

Hopefully, the judicial system is able to maintain its indepedence from the polics of the day.  These days it is important that we have a branch of government that is above the fray of public opinions.

SCOTUS Affirms Blood Withdrawal from Unconcious Driver without Warrant

 

The United State Supreme Court affirms that police can order blood drawn from a suspect in a DWI case while the suspect is unconscious.  SCOTUS holds that state law assuming driver’s consent to blood test for alcohol/drugs - even with the driver unconscious - provides an adequate exception to the warrant requirement under the 4th amendment.

Mitchell v. Wisconsin June 27, 2019 

NH Replaced 1988 Breath Machines with Intoxilyzer 9000, State is Afraid to Provide Access and Training.

NH has a long history of working with CMI, Inc. the manufacturer of the Intoxilyzer breath machines. NH purchased 88 Intoxilyzers in 1988 for $480,280.  The average cost was a bit more than $5,000.  NH has used the Intoxilyzer 5000EN until this year including a long term profitable training and maintenance contract between CMI, Inc and NH. 

Two images below are of an Intoxilyzer 5000 EN one at the Colebrook Police Department and the other showing the EPROM on three chips from a training.  Historically, CMI, Inc. has steadfastly refused to sell their machines, t-shirts or even a baseball hat to a defense lawyer. I have tried.   I have been told by the company that they only sell to government entities and to facilitate work place compliance such as oil rigs and transportation companies.

Colebrook PD I5000 EN

EPROM on Three Chip I 5000 EN

Back in 2017 NH agreed to spend $994,620 to purchase 139 Intoxilyzer 9000s from CMI, Inc. These new machines cost slightly more than $7,000 each plus will have a long term training and maintenance cost.  This means that NH citizens will be paying over $1,000,000 to CMI, Inc. but will not be provided any details on the inner workings, algorithms, science or trainings.  There is littlet doubt that these new intoxilyzers were neede to replace the aging equipment that was used as late as December of 2018 to convict NH citizens accused of DWI.  However, it is important that in any government transaction that there be transparency and candidness.  As the official breath testing maching of NH the Intoxilyzer 9000's inner workings have remained hidden from scrutiny and shrouded in secrecy.

I 9000

I 9000 Inside

As a NH defense attorney that focuses on DWI defense I have requested that the state of NH order an Intoxilyzer 9000 for me and my expert.   It was our hope to conduct experiments and test the Intoxilyzer 900.  We offered to fully reimburse the state and CMI, Inc would make for any costs associated with the additional purchases.  The NH State Forensic Laboratory refused my request on behalf of CMI, Inc.  I also have requested that the NH State Lab provide training on the Intoxilyzer 9000 for defense lawyers and again offered to pay for any costs associated and promised not to speak unless spoken to.  As a member of the NH Association of Criminal Defense Lawyers I also sought a co-ordinated training program for all NH lawyers to participate.  Again the Lab refused.

Expecting NH and CMI, Inc. to resist providing company training I  have traveled around the country to take advanced training courses on breath testing devises including the Intoxilyzer 5000, 5000 EN, 8000 and most recently on the 9000.  It is with these courses that I was able to obtain training on the science and methodology used by the Intoxilyzer 9000. 

I remain committed to learning the science and the proper protocols that are required to produce reliable results.  The extensive training that I have taken helps me to understand how to best defend a person accused of DWI.  The machines used by our government and made by a for profit corporation are not perfect and in fact they do make mistakes.  It requires work to discover how the machines work but armed with the knowledge of the machines inner workings means that you need not accept the test results as a guilty finding.  If you are charged with a DWI based on the printout from an Intoxilyzer 9000 and have doubts about the validity of the result contact me so I can review your case.

Even though NH and CMI, Inc do not want to provide the details about the inner workings, protocols and coding used there are other sources to discover the truth about breath testing and how to properly challenge the results.  I have taken the time, spent the time and invested in learning how the Intoxilyzer works and more importantly how it fails.

I 9000 Breath Capture Tube

It remains one of my goals to understand the technology and learn its limitations at the highest levels.  I  will continue to demand that NH and CMI, Inc. remove the shroud of secrecy and allow for scientific testing to be conducted.  No matter how many bells or whistles are added to a breath testing devise it is clear that they are still only estimates of blood alcohol levels.

As with all breath testing the equipment is really making an estimate of blood alcohol using a breath sample that will always be a poor substitute for actually testing blood.


There are many different substances that can interfere with a breath sample reading for alcohol.  Additionally, changes in breath temperature, pressure and many other factors can affect the precision, reliability and accuracy of a breath alcohol reading used to estimate a blood alcohol concentration.