PBT'S: In The News

After decades of use breath analizers continue to be a topic of controversy among the legal community. Attorney Michael Mermer has asked a judge to throw out breath test evidence against one of his clients becaue the police did not follow the rulres when they tested the calibration of the Intoxilyzer 5000. The rule states that a minimum of 10 minutes must pass between certain steps of the monthly calibration-verification process. Jay Zager, formerly in charge of the Broward Sheriff's Office breath-test unit and served on the FDLE's(Florida Department of Law Enforcement) Rules Committee, states,"''Those rules were put in place to protect the integrity of the results obtained by the Intoxilyzer.Violations of these rules certainly can make the results unreliable.'' Apparently, there are five tests to verify calibration so that mimics the human lung, one without alcohol then one with acetone, and three with different alcohol solutions. The acetone test is the one in question here because the mixture of acetone and water must have at least 10 minutes to heat up and combine. A necessity to help ensure the Intoxilyzer tests do not result in false positives.
NEWARK, N.J. (AP) - - Dozens of drunken driving cases are on hold as New Jersey judges address complaints from defense lawyers that the device replacing the Breathalyzer is not reliable.Cherry Hill lawyer Evan Levow is among those who say they've seen erroneous blood alcohol content readings in Alcotest cases. Levow won an order in Middlesex County to put Alcotest prosecutions on hold. The state has asked an appellate panel for permission to challenge the ruling.Trenton, N.J., December 14 Associated Press The New Jersey Supreme Court on Wednesday appointed a special master to conduct a hearing on the reliability of the machine that is replacing the Breathalyzer throughout New Jersey. The order also lifts the freeze on some of the hundreds of drunken driver prosecutions that were put on hold by judges after defense lawyers raised concerns about the new machine.... Meanwhile, hundreds of DWI suspects have their cases on hold. Alcotest evidence has not been allowed in Middlesex County since the fall, and in Morris and Union counties since Monday. A similar order was pending for Burlington County this week. The Supreme Court lifted the stay for Middlesex County cases, but made no mention of the other counties, perhaps because the court was not yet aware of the more recent actions....
EXCERPTS FROM DUIBLOG.COM :
The breath testing machine in question, the Alcotest 7110 Mark III-C, is manufactured by a German company, Draeger. The Alcotest 7110 supercedes the previous breathalyzer models, and is marketed as "undisputedly the most advanced Evidential Breath alcohol testing technology available today". As I (Attorney Lawrence Taylor) have posted in the past ("State of the Art" Breathalyzers: A History), the evolution of breath machines is one of manufacturers continuing to claim that their machines are "state of the art" and pretty much dead accurate and fail safe -- until their next models, which they then claim resolve all of the problems with the previous models.
My prediction(Mr.Taylor): The Supreme Court will lift the remaining (awkward) freezes, prosecutions will continue as before, time will pass, public confidence will resume and the new machine will be quietly approved -- despite the flaws brought out in lower court hearings. (Bear in mind that New Jersey is one of the few states in this nation that denies a DUI defendant the right to jury trial.) And Draeger will unveil a new, improved model that corrects the problems that got the 7110 thrown out. "State of the art".
http://www.mercurynews.com/mld/miamiherald/news/breaking_news/13496686.htm?source=rss&channel=miamiherald_breaking_news

http://abclocal.go.com/wpvi/story?section=local&id=3666364

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originally posted: 1/2/2006

SCRAM: If The Courts Don't Buy It, The Defendants Will

Prosecuters not taking cases to court, judges and probation officers questioning the reliability, and a contract stating that a defendant cannot use products with alcohol has redefined Lou Sugo's (AMS) claim that it is spot on accurate. SCRAM has become a topic of debate in at least one county where they have been introduced to the product, so what do you do if you can't sell it to the courts?
A man charged with drunk driving thought he had a lawyer, only to find out his lawyer was really a salesman pushing the SCRAM system. The man who spoke little English had spent hundreds on the monitor before he met his real attorney Whitney Fairbanks. In Durham County North Carolina, the company that runs the program has a growing group of critics that claim there are serious problems with allowing a independant company to use the courts to sell a product. The district attorney wants nothing to do with the program, and defense lawyers claim that their clients are being pressured and swindled into a program that may or may not help their case. Imagine, you sign up and then you get a reading from cleaning your windows, it could and does happen, then how are you going to avoid jail.
District Court Judge Marcia Morey wrote a company represenative has claimed to work for the courts and has falsely predicted that participation in the program would keep defendants out of jail in a memo to court officials." I think it is a creative way to prey on people," Morey said. "We are not in the business of preying upon people who do not know what they're getting into with this device," said Bruce Roberts, president of Rehabilitation Support Services. "The only thing that we are about as a company is making this product available to the courts at the discretion of the judge." (If it was at the discretion of the judge, why are there defendants out there wearing the product without the judges discretion?) In Durham, the use depends on which judge is holding court, and the same is for the entire state, but the Administrative Office of the Courts recommended that judges stay away from it.
District Court Judge Craig Brown says a report on how much alcohol the defendant has consumed for two months may help a judge make an informed decision on how much treatment is necessary." I view it as a work in progress. I know there are many issues that need to be discussed and fully resolved," Brown said. State law says nothing about the device and he has no authority to order its use, he allows defendants to volunteer for the program and insists they are fully aware that it is voluntary, which defendants often do to get a lower bail.
Roberts said the complaints about his company could simply be misunderstandings, and there is certainly room for miscommunication. Many of these defendants are Hispanic.
Dena Manning, the staff interpreter for the Durham Public Defender's Office, said she interpreted for Kenneth Hewett, one of the program's representatives, but began to feel uncomfortable because Hewett would change the price. "He was never specific, and the clients were confused as to who their attorney was. He was kind of giving off the impression he was their attorney," Manning said. "He would say, 'This is going to help you, it's going to keep you from going to jail.' " Hewitt denied petending to be a lawyer and says there was a miscommunication. "The thing I'm guilty of is not being fluent in Spanish," he said.
If these defendants are not fluent in english how could they understand the contract one must sign to participate:
I understand that as a participant in the Program that I am to abstain from any and all alcohol consumption and to avoid the use of products containing alcohol and to avoid certain restricted activities, as described as follows: Banned Products - I understand that I am not to use or possess any product containing alcohol, including, but not limited to: mouthwash, medicinal alcohol, household cleaners and disinfectants, lotions, body washes, perfumes, colognes, or other hygiene products that contain alcohol.
Tampering - I understand that the use of banned products near the SCRAM bracelet in an attempt to tamper with or alter its readings will be considered a violation of this Agreement. Swimming & Bathing - I understand that I am not to submerge the SCRAM Bracelet in water. Showers are the only permitted bathing method. Personal Hygiene - I agree that when bathing, I will thoroughly rinse with clean water and dry underneath the SCRAM Bracelet. I understand that failure to rinse away all soap may result in a mild skin rash. This is only an excerpt the contract is approximately 7 pages long and shows they are aware there is probability for false-positives.

Despite the praise from the judicial staff, every attorney that I know that has had clients on the SCRAM, have complained about false positive reports. I think, in Austin, we are headed that way, but I fear the problems that other folks have had with this system. It is not, cannot be, testing for ethyl alcohol. We are exposed to chemicals everyday that could cause a false positive.- Attorney Ken Gibson

http://austindwi.com/archives/scram-bracelet-is-being-used-in-dallas-for-dwis/#more-132


REFERENCE:
http://www.newsobserver.com/102/story/375541.html

http://66.102.7.104/search?q=cache:i3y5WA6T01wJ:www.denvergov.org/forms/SCRAM%2520R%26R%2520PARTICIPATION%2520AGREEMENT2004.pdf+SCRAM+monitors&hl=en

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originally posted 12/15/2005