Virginia Lawyers Weekly

The Intoxilyzer 5000, the widely used but aging breath alcohol sensing machine being phased out by Virginia authorities, is still drawing fire from DUI defense lawyers, including the attorney for a congressman fighting a drunken driving charge in Alexandria.

Despite criticism of the testing and maintenance of the 12-year-old Intoxilyzer 5000 machines, the state Department of Forensic Science stands behind the validity of the instrument’s readings.

On March 31, a Fairfax County judge granted permission for outside scientific testing of the embattled breath machine in three drunken driving cases. A similar ruling earlier last month resulted in a favorable plea deal for a DUI defendant.

Meanwhile, at press time, Fairfax lawyer Jerry Phillips was pushing for an inspection of an Intoxilyzer 5000 machine in his defense of Vito Fossella, the New Jersey Congressman whose drunken driving arrest in May unraveled an extramarital affair and sidetracked his political career.

Richmond attorney Bob Battle last month helped a client avoid a drunken driving conviction after a judge agreed to allow a defense expert to examine the internal workings of the breath machine. Fairfax County General District Judge Ian M. O’Flaherty ordered that Battle’s expert would be allowed to test the accuracy of the Intoxilyzer. On the eve of the scheduled inspection, Battle says, the prosecutor in the case offered a reckless driving plea deal that was, as Battle put it, “too good to turn down.” The testing was called off when Battle’s client accepted the plea agreement.

Another Fairfax attorney, Scott Surovell, on March 31 won motions for inspection of the machine for three separate defendants.

Again, the judge was O’Flaherty. There was no date immediately set for the ordered testing, Surovell said.

The state’s 220 or so Intoxilyzer 5000 machines are being replaced by newer instruments. Two years ago, when DFS sought money for the replacement program, it described the Intoxilyzer 5000 units as “dated, unstable and unreliable.”

When defense lawyers seized on that language to challenge the validity of intoxication evidence against their clients, DFS stood by the accuracy of the machines. According to DFS, the machines had become difficult to maintain but continue to produce valid measurements.

“Each evidential breath test instrument in use is certified for accuracy and tested with known standards at several concentrations at least once every six months,” said David A. Barron, DFS director of technical services. “In addition,” he said “a validation test with a control sample – known as a calibration check – is conducted as a part of every breath test.”

Accurate or not, the Intoxilyzers soon will be on the shelf and out of service, according to Barron. He said about 80 percent of the replacement units have been installed and the remaining instruments should be in place in about four weeks.

In the meantime, defense lawyers continue to hammer at the Intoxilyzer 5000 when it’s used to prosecute DUI suspects. “It’s really silly to abdicate all common sense to a machine that’s 12 years old and not being properly maintained by DFS,” said Harrisonburg lawyer Bob Keefer. Keefer still has cases based on the older machine, even though the police in his area now are using a newer replacement.

Phillips said there is evidence that the instrument used to test Fossella in May of last year was malfunctioning when it produced a 0.17 percent blood alcohol content reading. He said the machine did not properly read the operator’s identification card and garbled the officer’s name. “We knew we had some glitch going on,” Phillips said.

Phillips claimed that other evidence, including witnesses to the Congressman’s behavior, suggests that Fossella was not as intoxicated as indicated by the machine’s reading. “The evidence doesn’t jibe up,” Phillips said.

David Lord, the assistant commonwealth’s attorney prosecuting Fossella, says the machine’s result is valid. “It wouldn’t be prosecuted if it were not,” he said. He objects to a motion to inspect the Intoxilyzer machine eleven months after Fossella was tested. Furthermore, he argues a Virginia statute bars outside testing of the state’s equipment.

Fossella was convicted in district court, and his case is on appeal. A hearing on the inspection motion was scheduled for Thursday morning before Alexandria Circuit Judge Nolan B. Dawkins. Fossella’s trial is scheduled to start April 13.

The defense attorneys all make similar criticisms of the reliability of the Intoxilyzer 5000. As Battle explained, DFS has had to replace many of the motors in the machines. The so-called “chopper motor” must rotate at a precise rate for the machine to render accurate breath alcohol readings, according to the defense lawyers’ expert, Thomas Workman. As the motors have worn out in the aging machines, they have been replaced by various substitute motors, without documentation of the source of the replacements. Battle claims that the machine’s accuracy is in question because of uncertainty about the specifications of the replacement motors.

Battle goes on to argue that the state has not performed accurate quality control tests on the breath machines. According to one state document, the “most versatile and useful test equipment tool available” is the oscilloscope. Battle claims that none of the state’s Intoxilyzer 5000 machines has ever been tested with an oscilloscope.

Battle compares the Intoxilyzer 5000 to the seemingly all-powerful Wizard of Oz. “Once they roll back that curtain, they’re going to find this machine is not the perfect machine they make it out to be,” he said. “It’s really an outdated contraption.”

Surovell emphasizes the critical importance of the machine’s accuracy. “My clients have a lot at stake and a lot on the line in these cases,” he said. “They deserve to have quality service from the DFS.”

He’s hoping Workman soon will get a chance to take some measurements from the inside. “Finally, maybe for the first time, we will have an expert look inside the machine and see if it’s as perfect as the manufacturer’s specifications say it’s supposed to be,” he said.

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