In the past year it has come to light that the Intoxilyzer 5000 ENs used in the District of Columbia provided false high readings, and that a number of defendants were convicted, and even sent to jail, as a result of these flawed tests. See 400 drunken-driving convictions in D.C. based on flawed test, official says, Washington Post, June 10, 2010. This experience simply illustrates the dire need for a check on governmental incompetence with respect to scientific evidence in general and breath testing in particular. According to letters written by Igmar Paegle, who assumed control of the Metropolitan Police Department (MPD) testing program, two fundamental mistakes created this problem. The first was the improper calibration of a number of Intoxilyzer 5000 ENs by the officer assigned to this task to read 20 to 40% higher than the correct value. The second problem was the failure of the MPD to perform accuracy checks. As a result, the problem went unnoticed for a significant period of time. Compounding this error, government officials reacted by attempting to withhold relevant information. To make matters even worse, complaints were filed against whistleblower officers. See D.C. to forgo breathalyzer testing for the time being, Washington Post, February 15, 2011.
MPD attempted to replace its Intoxilyzer 5000 ENs with a different make and model breath test unit, the EC/IR II. However, due to overwhelming problems the use of these units has been discontinued in D.C. The test strips for the EC/IR II in both DC and Greenbelt formerly provided:
I CERTIFY THAT THE SAMPLE(S) ANALYZED ABOVE WERE TAKEN ACCORDINGLY [sic] TO GUIDELINES SET BY THE DISTRICT OF COLUMBIA’S CHIEF TOXICOLOGIST (OR HIS/HER DESIGNEE); THAT THE SAMPLE(S) WAS (WERE) TESTED ON EQUIPMENT USED ACCORDING TO THE MANUFACTURER’S SPECIFICATIONS AND APPROVED FOR THE EVIDENTIAL MEASUREMENT OF BREATH ALCOHOL BY THE CHIEF TOXICOLOGIST (OR DESIGNEE); THAT I AM LICENSED BY THE CHIEF TOXICOLOGIST (OR DESIGNEE) TO CONDUCT SUCH TESTING; THAT THE INSTRUMENT WAS CERTIFIED AS ACCURATE WITH THE PAST 3 MONTHS; AND THAT THE TEST RESULTS ARE ACCURATE.
More recent test strips in both DC and Greenbelt omit this certification.
There were at least two major problems that had been uncovered when DC and the US Park Police attempted to replace its Intoxilyzers with the EC/IR II, manufactured by Intoximeters, Inc. of St. Louis:
(1) the same dry gas that was used to calibrate the instrument was used as a control, and for a host of other reasons, the D.C. Toxicologist decertified at least 14 of 24 EC/IR IIs inspected by his office; (2) many of the devices were re-calibrated after a linearity check. This invalidates the linearity check.
Since the toxicologist in DC has refused to certify so many instruments, the District of Columbia has been looking elsewhere for someone to run their breath testing program. See, Alcohol breath tests nearly a year down the road in D.C., Washington Post, June 1, 2011.
Meanwhile Maryland has begun to replace its outdated EC/IR instruments (now referred to as EC/IR I) with the new EC/IR II. Time will tell whether the EC/IR II in Maryland is able to withstand the same type of scrutiny that resulted in DC suspending its breath testing program.