Years of DUI cases in Oklahoma could be thrown out. The Oklahoma Supreme Court ruled this week that proper maintenance procedures were not being done on the Intoxilyzer 8000 breath-alcohol testing device.
"There's nothing right about driving drunk, but there's nothing right about providing false evidence," says a man who doesn't want to be identified. He was arrested for a DUI in February of 2013-- during the period of time that there were no written rules for the Intoxilyzer 8000.
"He questioned whether or not the test was accurate from day one. He kept saying, 'I'm not sure it was accurate.' And, I kept saying, 'But, they've got the machine results. The machine's not going to lie,'" says David Slane, the client's attorney.
Before the Intoxilyzer is used, the device is tested to make sure it meets the manufacturer's calibration settings, but there wasn't a written testing procedure in place until May of 2013. "For five years, they operated without the rules," says Slane.
"Those policies are in place now and we are reviewing them to ensure that they comply with the court's order," says Kevin Behrens, Director of the State Board of Tests for Alcohol and Drug Influence. Why did it take years to put the procedure in place? Behrens says he doesn't know. "I wasn't here prior to late Fall of 2012," he says. He says he thinks the challenges in the case came from transitioning from one breath-instrument to another. He says the biggest difference now is that they independently test the gas canister that's used as a reference method to ensure the accuracy of the breath samples. "We know that this is a .08 in this canister," says Behrens, showing us the testing procedure. To test one device, it takes one and a half to two hours, and the new written rules require testing at least every two years. It all depends on how long the gas canister holds up.
What we do know is that this will affect a number of DUI cases, including Slane's client. "If they can't show that there was maintenance approved and maintained for that machine and rules in place, then the case is going to get thrown out," says Slane. "All machines can get out of whack and need to be calibrated or maintained, just like your car. In Oklahoma, if you're convicted of a DUI, even a first offense, not only do you lose your license, you could spend up to a year in jail. Usually, it doesn't happen. Usually you get probation. But, if a person has a second one or a third one, many times they ask for jail time to punish that person, so the accuracy of this information needs to be in place. It needs to be solid," says Slane.
Behrens says this isn't the first time a challenge like this has come up, and he says it won't be the last. "Court rulings are going to come down that are going to require us to evaluate our practices, and we're going to do that," he says.
Slane does note-- the Supreme Court ruling doesn't necessarily mean all of the breath tests were bad. The officer's experience, things like whether he or she smelled alcohol or saw alcohol will be taken into account. "I think that's going to be the argument from the other side that the police officer is well trained. He can smell alcohol. He can see alcohol. They're trained to stop drunk drivers," says Slane. "My advice to the Department of Public Safety is to shape up. Do your job. Adopt the rules and make sure that what you're doing is right, because people's lives and freedoms are at stake."