Plano DWI Lawyer Blog

The Intoxilzyer 5000 is the breath testing device used by the police in Texas to capture a DWI suspect's breath. The device purports to measure a person's alcohol concentration in breath, and express it in terms of grams of alcohol per 210 liters of breath. 

Recently, I posted about how the manufacturer of the Intoxilyzer 5000 refuses to allow any outside entity to view its source code. It appears that the bad news for the Intoxilyzer continues to accumulate.

In Virginia, an attorney learned that the state purchased replacement motor for the chopper wheel, a component of the Intoxilyzer 5000 that filters the infrared red energy absorbed by  a DWI suspect's breath sample after the infrared energy passes through a portion of the device known as the sample chamber.

The fact that Virginia replaced the original motor with parts from random companies is a problem, because the replacement motors may spin the chopper wheel at an RPM that is too fast. This accelerated speed may affect the complex calculations being performed, which may in turn affect the breath test result reached by the machine.

What else don't we know about the Intoxiyzer 5000? How do we know that Texas has not done the same thing with its machines? 

I posted recently about the proposed legislative initiative which would give the green light to Texas Sobriety Checkpoints.   It now appears that even more changes are in the works.  S.B. 261, introduced by Texas State Senator Bob Deuell would amend Texas Transportation Code sec. 724.012 to allow officers to take blood samples from DWI suspects when there was an accident that required someone other than the DWI suspect to be taken to a hospital or medical clinic.  In addition, it would authorize blood draws for people accused of DWI with child - a state jail felony, and people who are suspected of having two prior DWI convictions or a prior felony DWI conviction. 

 

 

This proposed legislation strike me as remedy in search of a problem.  In other words, police already obtain blood samples from DWI suspects by requesting a judge to issue a search warrant for blood.  Why then, do we need the statute to change in a way that grants police a power they already have and use?   

According to one witness testifying in the Texas legislature about the bill, obtaining a search warrant takes too long.  Another person might argue that the backers of this bill would like to see police have authority to have blood samples drawn without the necessity of presenting facts to a neutral and detached judge in support of a search warrant.  How much easier will it be for the police to have someone draw your blood based on their subjective opinion that you are intxocated?  If the police are so sure, why not present the facts to a judge and obtain a search warrant?  Why are we in a rush to dispense with one of our fundamental protections against an unreasonable search - a search warrant?     

In Texas Driving While Intoxicated (DWI) cases , a machine called the Intoxilyzer 5000 is the device used by police to take a sample of your breath to measure alcohol concentration. The Intoxilyzer 5000 is one in a series of breath testing devices manufactured by the CMI corporation of Kentucky.

The device employs a software program to measure the alcohol concentration and the manufacturer has steadfastly resisted efforts to disclose the Intoxilyzer's source code. Perhaps that resistance is slowly being overcome. In a series of cases Judges in Arizona, Minnesota, Kentucky and Florida have ordered that CMI turn over its source code to attorneys representing clients in Driving While Intoxicated cases. CMI claims that the source code material is proprietary.

Essentially, everyday in this country people are convicted on the basis of the results of a machine whose software has never been subject to analysis, independent scrutiny, or even view by those who will suffer because of its results.

It is a constitutional right in this country to confront one's accuser in court as well as to know the evidence against one. Perhaps the time is right for Texas DWI defense lawyers to seek to compel disclosure of the source code for the Intoxilyzer 5000.

Lawmakers in Austin are considering the adoption of legislation that would authorize the establishment of sobriety checkpoints in Texas.  Senator John Carona R- Dallas has introduced SB 298 and Representative Todd Smith R- Euless authored HB 169. Both bills would authorize sobriety checkpoints. A sobriety checkpoint is a police investigation during which all motorists passing through a particular location at a particular time have their car stopped by the police. If you pass through a sobriety checkpoint police will stop your car without any level of suspicion that you are engaged in some wrongdoing. For example, at a checkpoint you may be stopped without any indication that you are Driving While Intoxicated (DWI).

It is for this reason that many people believe that sobriety checkpoints violate individual rights to be free from unreasonable search and seizure guaranteed under the Fourth Amendment to the U.S. Constitution. In fact, in a pair of cases decided by our Court of Criminal Appeals fifteen years ago known as Sanchez v. State, 856 S.W.2d 166 (Tex. Crim. App. 1993) and Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994), the Court held that sobriety checkpoints established without specific legislative authorization, did in fact violate the Fourth Amendment.

Well, fast forward fifteen years and that specific legislative authorization is poised to become law. Very soon, sobriety checkpoints may be a reality for all Texas motorists.