Utah’s Intoxilyzer 8000
Law enforcement officers in the State of Utah use two different types of breathalyzer instrument called the Intoxilyzer 5000 or the mobile Intoxilyzer 8000. Both types of machines are manufactured by a company in Kentucky called CMI, Inc. These machines are often called mysterious because the manufacturer of the machines refuses to release information to defense attorneys about the way the machine operates.
In many ways, it is impossible to determine many of the mathematical calculations and assumptions made by the machine. Despite this fact, the courts in Utah will often allows prosecutors to use a “shortcut” that allows the breath test results to be admissible even though no one comes into court to explain how the breathalyzer works.
The breath test operator that tells you to blow into the machine knows very little about how it works. Even an inspector who performs inspections every 40 days is not allows to lift the lid of the machine to look at the internal parts.
Salt Lake City Attorney for Breath Test DUI with the Intoxilyzer 8000
Although the Intoxilyzer has tremendous problems, an experienced criminal defense attorney can point out how those problems may have lead to an inaccurate or unreliable breath test reading in your case. Contact Darren Levitt if you submitted to a breath test after being arrested for DUI in Salt Lake City or the surrounding areas in the State of Utah. During a free consultation, Darren Levitt can discuss your case and help you determine what defense might apply to your case allowing you to aggressively fight the charges for the absolute best result possible.
Routine Certification of Utah’s Intoxilyzer 8000 Every 40 Days
Under Utah Administrative Code R714 – 500, et seq., evidentiary breath-testing machines must be certified “on a routine basis not to exceed 40 days.” Your attorney will obtain the certification records for the specific Intoxilyzer 8000, identified by serial number, that was used to analyze your breath sample.
By looking at those certification records, your attorney can challenge any unusual results. If the certification was not performed properly or failed to follow the requirements of the administrative code, then your attorney can move the court to exclude or suppress the breath test results.
Fifteen (15) Minute “Deprivation Period” for Utah’s Intoxilyzer 8000
Before you submit to the breathalyzer, the arresting officer must follow a 15 minute observation period, often called the “deprivation period” in Utah. The purpose of the “deprivation period” is to make sure that the subject does not put any foreign objects into his or her mouth. The officer must also certify that the subject did not burp or regurgitate.
The court’s often refer to this observation period or deprecation period as the “Baker Period” named after the seminal case to discuss the issue, State v. Baker, 355 P.2d 806 (Wash. 1960). A subsequent case, State v. Vialpando, 2004 UT App 95, 89 P.3d 209, established the deprivation period in Utah is set at fifteen minutes. Other states require a 20 minute observation period.
During the observation period the officer must be in the same room as the subject and able to observe him or her. The officer must also check the person’s mouth for foreign objects before starting the observation period. If the subject burps, vomits, or regurgitates during the 15 minute period, the officer must allow the subject to clear his mouth and then the 15 minute period is restarted.
Under the Vialpando decision, the deprivation period is not satisfied unless the following conditions are met:
- the person is in the officer’s presence for the entire 15 minute period;
- it is clear that during the 15 minute period, the person did not ingest or regurgitate anything;
- nothing interfered with the law enforcement officer’s powers of observations during the 15 minute period.”
If the facts of your case indicate any problem with the 15 minute observation period, your DUI attorney should file a Baker challenge to force the court to suppress or exclude any mention of the breath test results at trial.
Utah’s Intoxilyzer 8000 and Problems with Mouth Alcohol
One of the biggest problems with the accuracy and reliability of breath test results from the Intoxilyzer 8000 is the machines inability to distinguish between mouth alcohol and alcohol found in the deep lung air. The machine assumes that the alcohol in the sample is from the deep lung air. The machine has a slope detection function that is suppose to help it determine if residual mouth alcohol is present within the sample. All too often that mouth alcohol function fails.
If the machine is working as designed, the fact that the subject has residual alcohol in his or her mouth should cause the machine to flag the reading with the term “slope not met” or “slope not level.” Unfortunately, the machine often fails this test. Even a completely sober person with residual mouth alcohol can have a breath test reading (BrAC) that is several times the legal limit.
Utah’s Breath Test Procedures
In Utah certain breath test procedures were adopted by the Commissioner of the Department of Public Safety pursuant to Utah Code section 41–6a–515(1). Utah’s alcohol breath testing program permits officers to use portable Intoxilyzer instruments to test a subject’s breath alcohol concentration. The test are designed to show a breath alcohol concentration which is measured in grams. The legal limit in Utah is 0.08 grams per 210 liters of breath. See Utah Code Ann. § 41–6a–502(1).
UPDATE: Utah Governor Gary Herbert signed HB 155 into law changing the legal blood alcohol level from 0.08 to 0.05. The bill will take effect December 30, 2018.
In Utah, the officers are permitted to only take one reading of the subjects Breath Alcohol Concentration (BrAC) even though other states using the Intoxilyzer 8000 require two readings taken a few minutes apart. In most cases, the one Intoxilyzer reading is never compared with a contemporaneous blood test or other alternative testing method. In other words, if the breath test reading is inaccurate, no one would ever know.
The Intoxilyzer instruments were designed so that someone with very little training can run a monthly check to test certain functions carried out by the instruments. In Utah this check often takes place every 40 days. Before each subject blows into the instrument, it also performs very simple internal diagnostic tests.
Utah Inspectors Certify the Instruments Every 40 Days
Rule R714–500–6 of the Utah Administrative Code requires an agency inspector to perform an inspection at least every forty days. This series of checks are conducted in an attempt to confirm that the Intoxilyzer will disallow an improper test including performing a mouth alcohol test in which the inspector places a small amount of alcohol on his tongue and then blowing into the instrument to see if it shows “slope not met” instead of registering a breath alcohol reading.
The mouth alcohol test is designed to check if the instrument is only measuring alcohol in the deep lung air as opposed to residual alcohol in the mouth. The mouth alcohol test is designed to ensure that the Intoxilyzer is properly disallowing tests where mouth alcohol is detected. The Intoxilyzer often has a problem detecting mouth alcohol which can be seen when the mouth alcohol test fails and the machine indicates that the inspector has a breath alcohol concentration.
During the inspection the agency inspector also uses a “wet bath simulator,” also known as an external calibrator, every forty days to check the Intoxilyzer’s ability to measure alcohol by simulating a breath test. He explained that the wet bath simulator uses a known ratio of water to alcohol to test the machine. If the Intoxilyzer is working accurately, it should register a reading of 0.100 whenever that solution is used. The administrative rule governing the inspection of the Intoxilyzer 8000 allows a margin of error of “plus or minus 5 percent or .005, whichever is greater.”
Standards for the Administration and Interpretation of the Breath Test Reading
Utah Code Section 41–6a–515 provides that the Commissioner of the Department of Public Safety “shall establish standards for the administration and interpretation of chemical analysis of a person’s breath,” and that if those standards are met, “there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.” See Utah Code Ann. § 41–6a–515.
Utah’s Commissioner of the Department of Public Safety has promulgated standards for the administration and interpretation of Intoxilyzer test results by rule. See Utah Administrative Code R714–500–1 to –13.
Finding an Experienced Attorney to Challenge the Intoxilyzer 8000 Reading
If you were charged with DUI and submitted to a chemical test of your breath on Utah’s Intoxilyzer 8000, then contact an experienced Salt Lake City DUI attorney for your breath test case. Call Darren Levitt for a free, confidential consultation to find out what you need to do today to preserve all avenues of attacking the breath test results and the Intoxilyzer 8000 used in the State of Utah.
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