Virginia Lawyers Weekly

The Intoxilyzer finally is retired.

The last state-owned “Intoxilyzer 5000” machines, used by police to perform breath tests on suspected drunken drivers, have been taken out of service, according to a spokesman for the state Department of Forensic Science.

DUI defense lawyers often criticized the reliability of the 12-year-old Intoxilyzer instruments and recently won court permission to have an expert examine several of the machines operated by the Fairfax County Police Department.

According to Tom Gasparoli, DFS chief communications officer, the Intoxilyzer machines, made by CMI, Inc., have been replaced statewide by the “Intox EC/IR II” made by Intoximeters, Inc., a privately held company based in St. Louis. DFS owns and maintains the state’s breath-alcohol testing machines.

Claiming the Intoxilyzer was unreliable and poorly maintained, defense lawyers for years have sought documents and tests, hoping to undermine the machine’s courtroom credibility. Their results apparently have been mixed, as they point to only a handful of rulings discrediting breath test results from Intoxilyzers.

The DFS has staunchly defended the accuracy of results obtained by Intoxilyzers, but reported two years ago the machines had been wearing out and breaking down more often. In 2007, the General Assembly approved $1.76 million to replace the state’s 220 Intoxilyzer 5000s.

The replacement process began in October and wrapped up the week of April 20, according to Gasparoli.

Among the last of the Intoxilyzers to go on the shelf were the ones used in Fairfax County, including one used to test the breath alcohol concentration of a New York congressman after he was pulled over by police in May 2008.

The arrest of former Rep. Vito Fossella led to the revelation that he had fathered a child out of wedlock with a woman in Alexandria. Fossella gave up on a reelection bid, but initially appeared eager to challenge the Intoxilyzer reading of a 0.17 blood-alcohol level.

Fossella paid for an expert who was allowed to test several machines in Fairfax County on April 8. Judges had granted permission for the testing in the Fossella case and three others.

According to Scott Surovell of Fairfax, an attorney for the other DUI defendants, not one of the four available Intoxilyzer machines was able to analyze a breath sample during the court-ordered testing. He said one machine showed the presence of substances that interfered with the test. The other machines either were already out of service or were too unstable to provide a reading, Surovell said.

Gasparoli, the DFS spokesman, confirmed that the department “facilitated and observed” the tests. He said the department would save any comment on what happened for the courtroom.

Regardless of the test outcome, Fossella pleaded guilty April 13 and accepted the mandatory five-day jail sentence for driving with a BAC over 0.15.

Surovell reported that one of his “test” clients was offered reckless driving in place of the DUI and accepted. Surovell’s two other cases involving the expert’s tests are scheduled for June.

As for the Intoxilyzer’s replacement, three defense lawyers who responded to an inquiry indicated skepticism about the EC/IR II machines, but none reported any experience with the new instrument.

Three of the defense lawyers, Surovell, Richmond’s Bob Battle and Jerry Phillips of Fairfax, agree the best means of accurately prosecuting drunken drivers is videotaping both the arrest and the testing, and using blood tests instead of breath tests to measure blood alcohol concentration.

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