Richmond Virginia DUI Lawyer Bob Battle was the first lawyer in Virginia to successfully convince a Virginia judge to allow a defense expert to examine the breath machine in a DUI case. The machine at issue was an already retired Intoxilyzer 5000 machine.
At issue in this case is the fact that the chopper motor on this particular machine was replaced. Alka Lohmann, former Breath Alcohol Section Chief , the representative of the Virginia Department of Forensic Science (“DFS”), testified that the state has no idea what brand of chopper motor was put into this machine. Bob Battle convinced Goochland Circuit Court Judge Timothy K. Sanner that a defense electrical engineer should be allowed to examine this machine to determine what type of motor was put in the machine and to check to see if this had any affect on the performance of the machine.
Virginia Intoxilyzer 5000 and Chopper Motor Issues
The Intoxilyzer 5000 used in Virginia is a breath machine that is 10 to 12 years old. The manufacturer of this machine CMI Inc. of Kentucky has already developed 2 later generations of intoxilyzer machines and seems to have little or no interest in supporting the model in Virginia. Virginia has wisely chosen not to go with CMI for its replacement breath machine. It signed an agreement with the makers of the machine known as the EC/IRII to replace the Intoxilyzers in Virginia. These machines are already in use in most jurisdictions in the Richmond area.
Here is the background on the chopper motor issue. Harrisonburg, Virginia DUI Lawyer Robert F. Keefer filed a demand under the Freedom of Information Act for records concerning the machine used in Virginia, the Intoxilyzer 5000. In her August 31, 2005 email, Alka Lohmann, ex-Head of VA Department of Forensic Science Breath Alcohol section, wrote:
We need to obtain and implement new equipment because some Intoxilyzer units are already 10 (almost 11) years old. The manufacturer is no longer making all the same parts. The motors the instrument currently uses no longer last very long (due to changes in manufacturing).
In another email to Alka Lohmann and the head of DFS, an employee wrote:
The motors are another issue; the current motor will be discontinued as of January 1, 2006. The “replacement” motors are currently in short supply and have jumped from $5 to $80-$100 per motor…I believe CMI doesn’t want to continue.
When questioned about this email by Keefer in court, Lohmann testified:
It’s referring to one of the parts of the
instrument which is the motor. The current motor will be
discontinued as of January 1, 2006, this email says. The
“replacement motors” are currently in short supply and
have jumped from five dollars to eighty, to a hundred
dollars per motor. The rest of the statement goes on to
say I believe that CMI doesn’t want to continue to
support the 5000 line since they have two generations of
instruments produced since that time.
Keefer was finally successful in obtaining internal documents from the Department that were submitted in support of an application for funding to replace the breath machines used throughout Virginia with newer models. The following are direct quotes from those documents filled out by DFS Division Director Ronald Layne:
Funding of this request will allow the agency to replace instruments (Intoxilyer 5000 instruments) that are 9-10 years old and for which replacements are not available. These instruments are outdated and the manufacturer is no longer maintaining parts and not capable of fully supporting them since current instruments demonstrate two further generations of technological advancement.
In reponse to the request form’s question, “What are the expected results to be achieved if this request is funded?” the following response was given:
To replace outdated, unstable and unreliable breath alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.
Defense Arguments in Pending Goochland Case
The use of aftermarket parts to repair aging breath testing machines is an emerging issue in the United States and Canada. There are two possible scenarios when using similar components from an after-market source on a breath machine. The first possibility is that the replacement part has the identical specifications and the second possibility is that the replacement part has different specifications.
In either scenario, the device is not the one approved originally for use as a certified breath test device. It may work, it may not, but it is certainly not the device vetted and approved by the Virginia government. Since it is no longer the approved machine, then the code sections allowing the admissibility of the breath certificate without the usual foundation for scientific evidence do not apply.
If you start swapping parts, who knows what effect that will have on the operation, accuracy, specificity, reproducibility or whatever gauge you have for the device. The defense expert in the Goochland case, Thomas Workman, an attorney, an electrical engineer and expert on the Intoxilyzer 5000 has stated:
When I was Quality Manager for Hewlett Packard, I came to understand two laws of
electronic parts:
1. Interchangeable parts aren’t.
2. If you think the change you made to how a part works is
insignificant, see rule #1.
I wish I had a penny for each time my HP organization had to stop the
manufacturing line because a supplier made a change that could not
possibly effect anyone, but in fact DID.
If a replacement motor rotates at a faster RPM, then the processor
may not have enough time to complete all the computations it must
perform each revolution of the wheel (since there are more
computations that must be done, since there are more revolutions of
the wheel per unit of time)
Make the motor turn slower and the problem is that the software
thinks that slopes are not being met when they should be, making the
mouth alcohol detector faulty.
The motor manufacturer for a VCR machine may think that a motor for
such a device with different RPM is no big deal. (The Intoxilyzer 5000
motor is also used in various VCR tape machines, as I recall). This
breath machine depends on the number of RPM to make computational
assessments. It is a big deal.
March 10, 2009
Virginia DUI