Breath Tester On Trial

Author(s): DAVID REYNOLDS, Daily News-Record Date: June 22, 2007 Section: Front Page

HARRISONBURG - Once again, a defense attorney is questioning the accuracy of the

machine that tests blood alcohol content at the Rockingham County Regional Jail. But
this time, Robert Keefer, an attorney who specializes in DUI cases, says he's not the only
one who appears to have reservations about the machine.
In a written motion, Keefer states the Intoxilyzer 5000 SN 68 is "outdated, unstable and
unreliable."
But those aren't his words, he says. Instead, he culled them from internal documents of
the Department of Forensic Science, the state agency charged with maintaining the BAC
measuring machines that are used throughout Virginia.
"These instruments are outdated and the manufacturer is no longer maintaining parts and
not capable of fully supporting them," Keefer states in the court document, again quoting
a 2005 DFS funding request.
On Thursday, however, DFS Director Pete Marone disavowed the phrasing on the
internal document, and said that a grant writer chose the wording, not a technical expert
familiar with BAC machines.
Marone's position, which is supported by local law enforcement and CMI Inc., the
machine's manufacturer, is that the Intoxilyzer SN 68 is accurate.
Man Vs. Machine
On Tuesday, Keefer will ask Rockingham County General District Court Judge John
Paul to allow a DUI expert to examine the jail's machine.
Keefer's motion is on behalf of client Teddy Burnell Watkins, who was charged with
DUI on Feb. 17, after blowing a 0.19 on the jail's machine, according to court records and
Keefer.
Keefer says he'll argue that Watkins wasn't over the legal limit of 0.08 and that an
inaccurate reading has complicated the case. Because of a prior DUI conviction, Watkins
would do jail time if convicted, Keefer said.
But that's just one example of the serious consequences that a DUI can have, Keefer said.
Others include fines, which will increase substantially in July with the advent of civil
remedial fees for traffic crimes, as well as heightened insurance rates.
For those reasons, it's vital that machines be accurate, Keefer says. He intends to file
similar motions in some of his other DUI cases, because he believes the local machine is
unreliable.
One of Keefer's arguments is the one taken from the DFS grant request - that
replacement parts are no longer being made.
In addition, he says that a DFS record, called a "trouble-call log" indicates problems with
the machine - at least according to his expert, Keefer says.
But any problem with the machine, which arrived at the jail in the mid-'90s, is worth
examining because of the serious consequences of a DUI conviction and the credence
given to the machine's results in court.
"This has a huge effect on people's lives and we want to be right about it," Keefer said.
Keefer also took concerns about the machine to court last summer, and sought CMI's
"source codes" - proprietary information that shows how the machine operates. But
Keefer withdrew that motion after working out a plea agreement for his client in that
case.
Everything's Fine
But area law enforcement, state experts and the manufacturer all say the machine is
accurate.
Marone says the department will replace the jail's machine and others like it in the next
two years. That's because newer technology is available and replacement parts for the
current model are difficult to find when needed, he said.
But when a replacement part is needed, the machine will shut down rather than operate
inaccurately, Marone said.
Also, the grant writer who referred to the machines as "unreliable" meant that the
department doesn't know how long the current machines will last, not that they give bad
results, he said.
Marone also said that DFS experts check the machines every six months. And with every
DUI test, law enforcement operators must certify that they followed a strict procedure,
authorities say.
Phil Lively, a program support manager at CMI in Owensboro, Ky., also says the
Intoxilyzer 5000 SN 68, used in Virginia, works fine.
"It's gone through a tremendous amount of testing and has met every forensic standard,"
Lively said.
Assertions that replacement parts aren't available are also inaccurate, he said.
"I've got a whole stockroom full of parts. ... We still have to support the instrument,"
Lively said.
Assistant Commonwealth's Attorney Alycia Eldridge said she will ask Paul on Tuesday
to deny Keefer's request. With a state agency charged with ensuring the machine is
accurate, bringing in defense experts in every DUI case is unnecessary, Eldridge says.
Both Sides Want Accuracy
Although they differ on whether an outside expert is necessary, those on both sides of the
issue agree that an accurate machine is vital.
John Holloran, chairman of the Criminal Law Section of the Harrisonburg-Rockingham
County Defense Bar, said he supports Keefer's efforts.
With DFS documents indicating the possibility of problems, an outside look couldn't
hurt, Holloran said.
Since the machine's results can be used to convict defendants, it should be held to the
highest scrutiny, Holloran said.
"Computers don't run our lives or make judgments [for us]," he said. "Why not check the
accuracy of the computer?"
Rockingham County Sheriff Don Farley also says he wants accuracy, adding that the
current machine provides that.
"I have all the confidence in the world the machine is operating correctly," he said. "If I
[were ever] proven wrong in that, I would be the first one to get a new machine in here."

Contact David Reynolds at 574-6278 or reynolds@dnronline.com