Plano DWI Lawyer Blog

In yet another situation involving the Intoxilyer 5000, approximately 360 people in Washington D.C. were convicted of Driving While Intoxicated based on evidence of their alcohol concentration provided by the machine known as the Intoxilyzer 5000.
Just one problem. Due to human error, the results were inaccurate by as much as twenty percent!

The Intoxilyzer 5000 is the "instrument" used in Texas to measure the alcohol concentration of persons suspected of DWI.  In the DC case, human beings were able to manipulate the baseline data, intetnionally or not, that resulted in the false reporting of the alcohol concentration.  

Nevertheless, the results of the Intoxilyzer 5000 were accepted as accurate by juries in the DC cases, just as the results are sometimes accepted as accurate by juries in Texas and elsewhere. 

In many driving while intoxicated cases in Collin and Dallas Counties, and throughout Texas, the state relies upon a machine known as an Intoxilyzer to try and secure convictions. The theory is that this machine can measure the grams of alcohol present in  a specified volume of breath.

Regular maintenance of the machines is critical, and the Department of Public Safety frequently outsources this task. Recently, over one thousand DWI convictions is Harris County Texas were eligible to be set aside because one of the inspectors hired to maintain the instruments simply falsified the maintenance records.  This particular inspector handled machines that were used by seven separate police departments.  Instead of working, she simply pocketed her salary.

In spite of this, in many of the cases involved here, the "technical supervisors" presumably testified at the trial of those accused of DWI.  The techinical supervisors testify to the accuracy and validity of the breath test result. The technical supervisors presumably testfied to the validity and accurance of the breath test results, never knowing of the falsity, and relying completely upon the work of another person. 

I see many, many trials where the technical supervisors testify that the breath test result is accurate, frequently relying on someone else's work.   I have never had a personal concern about the honesty of any of the technical supervisors I have met in Collin or Dallas County, but the potential for abuse still exists in this system.  Our system deserves better.

In a previous post I discussed the Intoxilyzer 5000, which is the device used in Texas to take a breath sample from motorists who are suspected of being intoxicated while driving.  As I mentioned in the previous post, attorneys are having increasing success in obtaining court orders to have CMI, the manufacturers of the Intoxilyzer 5000, turn over the source code that is found in the software supporting the device to defense attorneys who seek to review it. 

Now, the Minnesota Supreme Court has ordered the source code to be turned over.  Rather than abide by a lawful court Order, the manufacturer has refused.  In turn, authorities in certain Minnesota counties will no longer use the Intoxilyzer 5000 in DWI cases because the results will be inadmissible in court unless the manufacturer of the Intoxilyzer 5000 relents and complies with the court order to allow attorneys access to the source code.  

It is a fundamental principle of our law that people accused of crimes are entitled to confront the witnesses against them and access the evidence that is utilized by those who seek to convict them.  Until CMI is willing to allow defense experts to review the source code, attorney will continue to press forward with this claim.  

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? 

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.