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New breath machine, new DUI defenses? (access required)

WILLIAMSBURG – Meet Virginia’s new breathalyzer, same as the old breathalyzer. “Both instruments are equally accurate and precise,” says Alka Lohmann, the woman responsible for calibrating the state’s breath alcohol machines and training their operators. She’s talking about the Intoxylizer 5000 and the Intox EC/IR II, the machine that replaced the Intoxylizer 5000 by April 2009. That certitude, ...

2 comments

  1. Interesting article. Thanks for sharing.

  2. As a DUI lawyer, I feel the “deficient sample” issue is a huge problem. Alka Lohmann is correct that the EC/IR II machine requires a slow steady breath. However, the preliminary breath test offered by the officers at the scene requires the “huffing and puffing” just like one would use to blow up a balloon. Blowing in this exact manner in the EC/IR II will cause a “deficient sample” reading. Like the defense lawyers mention in the article, I have seen a huge increase in the number of “deficient sample” results. This does not mean the same thing as an “insufficient sample.” Here is the problem- after 2 “deficient samples,” the breath test operator is “declaring” a refusal. Ms. Lohmann’s own PowerPoint training of the breath test operators taught them that they could conduct “3 or 4 tests” in the allotted 3 minute time. Yet, the breath test operators have chosen a “2 strikes and you’re out” policy. A refusal is a separate offense that carries a 1 year license suspension for first offenders and a 3 year license suspension for those with a prior DUI or Refusal conviction with no ability to obtain a restricted license.
    In Wyoming, where they also use the same breath machine as is used in Virginia, breath test operators who saw that people trying their best to give a sample but could not do it on this machine have instituted a policy that if there are 2 “deficient samples” then the person is taken for a blood test rather than being declared to refuse a test they honestly did not refuse to take!
    Yesterday, I was able to get a DUI and Refusal charge reduced to Reckless Driving when I presented evidence on the meaning of a “Deficient Sample,” the Wyoming case law and some legitimate health issues with my client.

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