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5.1.1. The Intoximeter 3000
5.1.2. The Intoxilyzer 5000
5.1.2.a. Is the Intoxilyzer 5000 better, and why?
5.1.1. The Intoximeter 3000
The Intoximeter 3000 infrared breath testing device
was commissioned in Georgia in 1982. It is presently not in use,
having been decommissioned on December 31, 1994. In addition,
with the passage of HB 610, which modified O.C.G.A. § 40-6-392
and was applicable to all pending cases, no Intoximeter 3000 test
results should be admissible in court any longer. Hence, little
discussion of the Intoximeter 3000 will be had in this chapter
nor in the remainder of this book. In 1996, the machine is little
more than a historic footnote.
A patent application for a Method and Apparatus
For Measuring Breath Alcohol was filed on January 26, 1981 by
Donald Hutson. On December 14, 1982, United States patent number
4,363,635 was issued for the instrument which subsequently has
been manufactured by Intoximeters, Inc., of St. Louis, Missouri
and marketed under the trade name Intoximeter 3000. Three (3)
subsequent models have been developed and marketed: Intoximeter
3000 (B1), Intoximeter 3000 (B2) and Intoximeter 3000 (B2A) and
apparently share the same patent.
The Photo-Electric Intoximeter (Model 300 or 400),
the Gas Chromatograph Intoximeter (MARK IV or MARK IVA), and the
Auto-Intoximeter, all manufactured by Intoximeters, Inc., were
still approved evidential breath-alcohol testing instruments in
Georgia until December 31, 1994, when they were decommissioned,
too.
Today, the only evidential breath-alcohol instrument
approved for use in Georgia for obtaining chemical sobriety tests
in accordance with O.C.G.A. § 40-6-392 is the Intoxilyzer
5000, series 768GA.
5.1.2. The Intoxilyzer 5000
The manufacturer of the "Intoxilyzer"
line of breath screening and evidential devices is CMI, a Kentucky
corporation based in Owensboro, Kentucky. The breath testing device
was originally developed by Richard A. Harte of Omicron Systems
Corporation of Palo Alto, CA, and was originally called the "Omicron
Intoxilyzer."
Varying models of the "Intoxilyzer" are
in use by more than 35 states, and nearly 30 states have it as
their sole breath testing device. It is the most widely used breath
testing device in America, although there are numerous versions
or models in use: Models 4011, 4011A, 4011AS, 4011AS-A, and the
5000. There are various "series" of the 5000, including
the 568G, used by Oregon, the 564, used by Alabama, the 568 series
used by Florida and the series 768GA used by Georgia.
The machine formerly used by Georgia was the Intoximeter
3000, Model B-2A. The Intoximeter 3000 is no longer being manufactured
by Intoximeters, Inc. The company is now marketing a new machine
called the Intoximeter EC-IR.
The Intoximeter 3000 was the first infrared machine
with computer capabilities. However, after the GBI removed or
disengaged the Taguchi cells in the machine in 1984 [See Lattarulo
v. State, 261 Ga. 124, 401 S.E.2d 516 (1991)], the 3000 (as used
in Georgia) had lost its capability to distinguish between alcohol
and other volatile chemicals having similar infrared "fingerprints."
Without the Taguchi cell, the instrument was simply a single wavelength
infrared tester, which was totally NON-SPECIFIC for ethanol (alcohol).
Hence, it was used to convict many persons who had unknown concentrations
of alcohol on their breath, but which could very well have been
"mixed" with toluene, acetone, benzene, methyl ethyl
ketone or an array of other "like" substances. See Oxley
v. State, 210 Ga. App. 296, 435 S.E.2d 705 (1993).
Earlier models of the 5000 had a three filter design
which identified only acetone, other than detecting ethanol. The
acetaldehyde detector was offered as an option by CMI using the
three filter design. Other chemicals could not reliably be detected
or reported. The three-filter machine was similar to an Intoximeter
3000 with a working Taguchi cell, except that the Intoxilyzer
5000 checked for the presence of ethyl alcohol at two wavelengths.
The request for a more "sophisticated" machine led to
development by CMI of the machine (the Intoxilyzer 5000, Series
768GA) purchased by Georgia and other states. This machine has
five filters which center on 3.80, 3.40, 3.47, 3.52 and 3.36 microns
of the infrared spectrum. These are designed to detect ethyl alcohol
(2 bands), acetone, acetaldehyde and toluene.
5.1.2.a. Is the Intoxilyzer
5000 better, and why?
During most of 1994, the State of Georgia tested
two machines in field testing before choosing the Intoxilyzer
5000 as the "sole" machine to be used for breath testing.
The other machine was the Datamaster II, manufactured by National
Patent in Mansfield, Ohio. The Datamaster is used by South Carolina,
Washington, Arkansas and several other states.
In some ways, the design of the 5000 is undoubtedly
better. In others, it is not as "good" as other devices.
Many Georgia law enforcement officers preferred the Intoximeter
3000 because almost no test subject was unable to provide a sufficient
"blow" on the machine. The contrary has proven to be
true on the Intoxilyzer 5000.
The 5000 (series 768) is supposedly superior in
that it has five wavelength "filters" to the 3000's
one wavelength "filter." The machine has an internal
reference standard centered at 3.80 microns, plus two detectors
centered at 3.40 and 3.47 microns. These filters help distinguish
between alcohol and acetone. The machine is also fitted with a
filter to detect acetaldehyde (a common by-product found in human
breath when alcohol is metabolized by the liver). It also has
a filter which is designed to detect toluene, a very common chemical
in paint products. In addition, the machine has a filter which
will detect water vapor, as do all machines of the 5000 series.
(564, 566, 568 and 768 series.)
The filters for the 5000 are designed to detect
and SUBTRACT out from the "reading" any interfering
substances if properly calibrated. However, the GBI has required
CMI to set up a different protocol for the Georgia version of
the 5000. The GBI has trained all officers to discontinue any
breath test which produces a readout indicating an interfering
substance, and to take the subject to a hospital for blood testing.
The machine (as configured in Georgia) is programmed to merely
report the interfering substance, not try to deduct it and render
an adjusted reading. In other words, the procedure is to not chance
that the machine can accurately subtract out these substance readings,
but get an accurate test of the person's blood whenever a subject's
test indicates the presence of any interfering chemicals. This
"safeguard" is deigned to protect the accuracy and reliability
of a subject's test result.
If the machine is not operating properly to detect
and report an interferant, the value obtained can be artificially
high and the test operator would be unaware of that fact.
The blood test result will be much more likely to
give an accurate analysis of all chemicals in the person's system,
including alcohol. Until the July, 1995 inspections on Georgia's
Intoxilyzer 5000 machines, no systematic testing for interfering
substances was attempted by the area supervisors, because the
GBI did not supply them with any chemicals with which to test
for interfering substances. Even then (and at the time of publication
of this book) only acetone is mixed with the alcohol solution
to test for this single interfering substance.
The "rules" for this inspection procedure
are not part of the GBI Rules for implied consent. They are only
written down in a memo from the GBI to the area supervisors. In
fact, until early 1995, there was not even a training manual for
the Intoxilyzer 5000 given to students who had taken the course
update (the so-called "refresher" course). When Georgia
first purchased the Intoxilyzer 5000 in 1994, there was no manual
on the 768GA. However, one has been published since. Prior to
that, only a dozen pages of material from the manufacturer's service
manual as documentary support during their four hour training
course.
The "refresher" course given in Georgia
was only 4 hours in length, compared to 40 hours required in Florida's
program for their 5000 operators. Hence, the "refresher course"
operators will not only SAY they know nothing about the machine
and how it works, they DO KNOW NOTHING! Hence, cross-examination
of the officer on the length of his/her training, plus the issuance
of subpoena duces tecum for the written course materials utilized
in his/her training course may be highly informative.
The "regular" training course for the
Intoxilyzer 5000, which was taught to officers who were new to
infrared testing in Georgia, is basically the same two-day (16
hour) course that has been taught on the Intoximeter 3000 for
over 12 years. A manual was created around February 1, 1995, and
is substantially the same text as the old Intoximeter 3000 training
manual (including some incorrect and outdated information).
The 5000 has a heated collection tube (which is
supposed to prevent condensation of warm, alcohol-laden breath)
to provide the subject's breath intake. This is an improvement
over the 3000, which had an unheated collection tube.
The 5000 also has a "slope" detector which
is supposed to detect "mouth alcohol," such as when
someone has burped, or has alcohol in their mouth. However, experiments
have proven that the slope detector of the 5000 does not always
work. One of the flaws of the machine is its susceptibility to
variations in test results based upon the manner of "blowing"
into the tube. This so-called "sampling error" can be
caused by hyperventilating before testing, or by "overblowing"
(packing the sample chamber with a forced "blow" such
that extra molecules of ethanol are inside the chamber). Moreover,
the slope detector can be "fooled" by having the subject
perform a slow, steady blow into the machine, rather than the
hard, forced blow suggested by the officer.
Beginning January 1, 1995, the state has mandated
by statute that all subjects be given two tests on the breath
machine [O.C.G.A. § 40-6-392(a)(1)(B)]. The computer program
in Georgia's series 768GA machines was custom-designed to Georgia's
specifications. Yet, the first computer chip software program
utilized in the 5000 machines was flawed and the average test
subject was generally incapable of providing a second "blow"
into the device in a manner that would yield a numerical result.
Some machines were defective when shipped into the state and would
not readily accept ANY blow from a subject. For example, at one
point, the City of Suwanee reported 8 of 10 subjects "refusing"
the test, despite the fact that most subjects blew until they
were dizzy.
Reports were rampant across the state about similar
problems with the machines. In early shipments, as many as one-third
of all machines shipped to Georgia were immediately returned to
the manufacturer for corrective work. Despite the Intoxilyzer
5000's full database capabilities, sketchy hand-written records
of these problems are being maintained by the state. This is due
to the fact that Georgia's machines are not downloaded---EVER.
These computer-generated records, if kept by the state, would
provide a history of the machine's unreliability. This omission
of use of the computer database by the state seems to be "by
design."
In support of this contention, consider that these
machines are 100% computer-friendly, and have a Z80 microprocessor
chip and a serial port which can be downloaded by modem or by
on-site computer. This way, a complete, accurate history of defects
and aborted tests could be kept, yet the GBI has taken no steps
to keep this data, and apparently has no plans to do so in the
future. This is a continuation of the "ostrich" approach
that has been the trademark of the GBI Division of Forensic Sciences
for over 10 years. If this evidence was available to the judge
and jury, proof of failure and test errors would undoubtedly be
a compelling reason for a jury to not believe machine test results.
The series 768 machine has approximately seven (7)
different configurations. Although the series of machine used
in Georgia (the 786) is the only breath testing device in use
in America which is capable of providing a "flow rate"
of the subject's volume and "flow" of breath, Georgia
opted not to purchase this technology. Such machines (when configured
with this more advanced technology) do not have the balky "pressure
switch" at all. They are equipped with a thermistor. A printout
of this "flow rate" data would instantly tell the operator
that the machine had malfunctioned, and that the subject was feigning
compliance with the officer's request to "blow."
Even worse, even though these machines are fully
capable of being fitted with an adapter which permits the capture
and retention of the subject's actual breath "sample,"
the GBI opted not to have this important part installed on the
machines being commissioned for Georgia. The samples (if collected)
have a 98% accuracy rating for up to two years.
Although the 5000's capability to accept a "normal"
blow and trigger the machine's pressure switch is critical to
a valid test being obtained, no periodic maintenance procedures
exist whereby the functionality of the pressure switch is checked.
To check this (since Georgia purchased the 5000 with a pressure
switch, and not a model utilizing a thermistor), a spirometer
or other gauge is needed. Georgia's machine was purchased without
the available self-contained "spirometer" technology.
Hence, Georgia selected and bought the Cadillac
of breath machines, but left off the steering wheel (the thermistor
model with the breath sample collection system), the brakes (the
computer database) and speedometer (the volume/flow indicator).
These omitted attachments or options help the state obtain convictions,
but circumvent fair play for citizens who are asked to submit
to tests on these devices.
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William C. Head, Senior Partner
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