Georgia drivers who are suspected of DUI must submit to a chemical test of their blood, breath, or urine at the officer’s request. However, before submitting to any test the officer must first properly advice the motorist of their rights under Georgia law. Georgia chemical testing of the blood, breath, and urine is an incredibly complex area of the law which gives skilled defense attorneys many opportunities to attack the admissibility, and reliability of the evidence.
Here, we discuss the many complexities and issues relating to Georgia breath testing on the Intoxilyzer 5000 and Intoxilyzer 9000. Since this area is fraught with issues, the easiest way to present this information is through the most frequently asked questions involving breath machines and breath testing.
Which machines are used in Georgia to test a motorist’s breath?
Georgia uses the Intoxilyzer 5000, and Intoxilyzer 9000. Georgia is in the process of upgrading all Intoxilyzer 5000s to Intoxilyzer 9000’s, but this will not be complete until December 2015.
Are these machines accurate?
The machines have the ability to be accurate, but several factors can influence the machines’ reading. Medical issues such as diabetes, esphogeal hernia, heartburn, liver disease, and even a fever can interfere with the accuracy of the Intoxilyzer 5000 and Intoxilyzer 9000. Further, there are certain substances a person may have been exposed to that can interfere with the machines’ accuracy: Toluene, acetaldehyde, and acetone are just a few of these substances.
People who are on certain diets, or medications, may have abnormally high results as well. Even hyperventilating will yield skewed results on these machines. Certain substances in a subject’s mouth such as tobacco, mints, lip balms, denture adhesive, braces, bridge work, etc. may affect the accuracy of the breath testing machines. The machines may also be affected by Radio Frequency Interference (RFI) from radio waves emitted by the officer’s walkie-talkie, or cell phones. The Intoxilyzer 5000 and Intoxilyzer 9000 also cannot distinguish between mouth alcohol, and actual blood alcohol.
Additionally, the Intoxilyzer 5000 and Intoxilyzer 9000 allow themselves a variance of .20 between the 2 breath samples. For example, if a subject blew a .099 and a .079 the machine considers itself to be within acceptable parameters of accuracy. A 20% variance rate to be considered within parameters is not very accurate, and would only be considered accurate by a government agency.
The bottom line is this: The Intoxilyzer 5000 and Intoxilyzer 9000 are just a machines, and all machines screw up from time to time for no known reason. I often explain this to juries using the computer and the toaster. Have you ever clicked on the print button on your computer screen, and nothing happens? Then, a few seconds later you click on the same print button and your printer spits out exactly what you wanted it to. Or, perhaps, one morning you put two slices of bread in the toaster, push the lever down, and a few minutes later 2 pieces of burnt bread pop up. Then, you put 2 more pieces of bread in your toaster, push the lever down, and a few minutes later two perfectly toasted pieces of bread emerge. Can we explain why this happens? No. All we can say is that for whatever reason, machines screw up. The Intoxilyzer 5000 and Intoxilyzer 9000 are machines like any other, and they can malfunction.
How often are the Intoxilyzer 5000 and Intoxilyzer 9000 checked for accuracy?
Under Georgia law, the Intoxilyzer 5000 and Intoxilyzer 9000 must be checked for accuracy once a quarter. Once every 3 months is not much calibration testing for a machine that has so much hinging on its accuracy. The story gets worse: Since the machine is only required to be checked once a quarter, sometimes a machine will be checked on the first day of one quarter, and the last day of the following quarter. In this scenario, the machine has still been checked properly under Georgia Law, but the machine has had six months of operation between calibration checks! These practices favor inaccuracy and unreliability in breath testing.