Saturday, November 25, 2006

Watts Riot Started After CHP Officer's DUI Stop And Batton Hit On African American

This is a point of fact worth noting for history. Read this post from "White Privlege":

excerpt from “40th Anniversary of Watts,”, 8/11/05

Today marks the 40th anniversary of the Watts uprising in Los Angeles. A white California Highway Patrol officer named Lee Minikus pulled over 21(twenty-one) year-old Marquette Frye, who was black, on suspicion of drunk driving. Frye had been driving in the car with his brother and additional officers were soon called to the scene. Rena Frye, the mother of the two boys showed up as well and eventually all three members of the Frye family were arrested. As the officers questioned them, the police hit the brothers with their baton. The crowd grew increasingly angry and a confrontation began that led to six days of rioting leaving 34 people dead, 1000 wounded and 4000 people arrested. The Watts uprising sheparded in a new more militant era of the civil rights movement as African-Americans took to the streets in a mass protest against white economic exploitation and police brutality. The Black Panther Party for Self Defense was formed in Oakland, California less then a year after the rebellion. Yesterday, a report was presented to Los Angeles Mayor Antonio Villaraigosa and police chief William Bratton by the Los Angeles Urban League and the United Way titled “The State of Black Los Angeles.” The report found that, 40 years after Watts, African-Americans continue to face many of the same conditions they faced in LA forty years ago. They point to the fact that in L.A, African Americans still have the lowest household income in the city, are far more likely to go prison and are searched by the Los Angeles Police Department at four times the rate of whites.

It's really sad to see that over 40 years the relationship between CHP and Blacks and in this case other law enforcement organizations, has not really changed. Remember, the CHP was the target of a successful racial profiling lawsuit in 2003.

California Highway Patrol Bans Consent Searches, But Still May Do Them?

This article below and linked to claims that the CHP bans consent searches, but other not-for-attribution accounts claim that they have actually not banned this practice at all and in some cases do these searches without the knoweldge of the suspect.

As the ban of this action was at the center of the CHP's settlement in its racial profiling lawsuit, for them to actually maintain this practice is a violation of that settlement.

SAN FRANCISCO, CA -- The California Highway Patrol's commissioner ordered a ban on some car searches Thursday, a move that civil liberties groups say is a tacit admission that officers single out minority drivers for unfair treatment, the Associated Press reported. According to the AP, CHP Commissioner D.O. "Spike" Helmick ordered a six-month moratorium on "consent searches," which officers can conduct only if they receive permission from a driver.

Officers will still search a car if they have probable cause that it was involved in a crime.

Helmick said the moratorium does not reflect any concern that CHP officers target minority drivers.

"Our people clearly do not racially profile," Helmick said. "I think we treat people fairly. We're just trying to be sure."

A team of CHP managers recommended the ban after a review of search data from last July through March, he said. State police began collecting the search data in February 1999 in response to complaints that officers stop and search Latinos and African Americans more often than whites.

Helmick said a preliminary review of the data showed that CHP officers had conducted 1,370 consent searches since July, "a very small number when you look at the almost 3 million traffic stops we make each year."

He said he decided to order the moratorium while analyzing the data because "I simply said, 'I want to know what . . . is going on.' "

The American Civil Liberties Union of Northern California says it knows what's going on: The group has brought a lawsuit in United States District Court alleging racial profiling by state troopers around San Jose.

The ACLU is focusing on CHP drug task force officers. The group has interpreted data the CHP handed over as part of its case to show that drug officers search Latinos and blacks at far greater rates in some highway corridors.

In a court filing, the ACLU said that after being stopped, Latinos were nearly four times more likely to be searched than whites in the central coast area that includes U.S. 101, and that blacks were more than twice as likely to be searched. The ACLU said CHP data show similar rates in a Central Valley area that includes Interstate 5.

"The drug interdiction officers have the most severe rates of racial profiling," said ACLU lawyer Michelle Alexander.

"Officers are encouraged to use minor traffic violations to stop motorists and then get consent to search their cars for drugs. . . . They're operating on a hunch, on a guess, on a stereotype," said Alexander, who is the head of the ACLU of Northern California's Racial Justice Project.

The ACLU has argued similar search cases against highway officers in other states, including Illinois, New Jersey and Maryland.

"I do not agree with their numbers, but I am not going to try that court case out of court," Helmick said. "They're wrong, they're dead wrong. And I'd be more than happy to prove it."

Friday, November 24, 2006

California Highway Patrol Uses Faulty "Intoxilyzer 5000" in DUI Stops; Even MORE Evidence Of Overestimated Readings!

I've just found another link -- well, this was sent to me -- regarding the Intoxilyser 5000 and overestimated (or what are called "false positive") readings. This is from the Table of Contents of a book on the matter of Breath Testing. Read it carefully.

This is a PDF file that wil download if you click this sentence you're reading.

Thursday, November 23, 2006

California Highway Patrol Uses Faulty "Intoxilyzer 5000" in DUI Stops; More Evidence Of False Readings

As if the study noted and linked to in this blog were not enough, here's more link evidence that the "Intoxilyzer 5000" used by the CHP is not reliable and produces overestimated readings.

CHP Promotional Exam Tossed For Irregularities - September 24, 2005, Sac Bee Capitol Bureau

CHP promotional exam tossed for irregularities
By John Hill -- Bee Capitol Bureau
September 24, 2005

Setting it straight: A story on Page A1 Saturday about a flawed promotional exam at the California Highway Patrol stated that a federal judge dismissed a sexual harassment complaint made by a female officer. While the judge dismissed those complaints against an individual, Assistant Chief Hubert A. Acevedo, he allowed them to proceed with regard to the CHP.

In a rare move, the State Personnel Board threw out a promotional exam for one of the highest ranks at the
California Highway Patrol, ruling that the oral test for deputy chief was so riddled with irregularities that there was no way to tell which of the 17 candidates should have passed.

The board's recent audit of the June 2004 exam found that the CHP could not produce the notes taken by two panel members conducting the exam, including former Commissioner Dwight O. "Spike" Helmick, contrary to personnel guidelines.

The exam panel had three members. One, who wasn't named, challenged some competitors' responses, prompted others and tossed the exam materials across a desk in a way that one applicant considered hostile, the audit said.

Completed last month, the report found that the exam panel showed possible bias against one applicant, Hubert A. Acevedo. Acevedo earlier had announced his desire to succeed Helmick as commissioner. He says Helmick vehemently opposed that effort. "I've been saying for 18 months that I have been the victim of politically motivated retaliation by the previous CHP administration for putting in for commissioner," Acevedo said. "Clearly, the SPB audit validates my view."

Helmick denied he had anything against Acevedo. "I have no fight with Mr. Acevedo," he said. "No one did anything purposely improper."

The audit comes on the heels of the discovery last year that a captain on a sergeant's exam panel handed out the questions to a candidate, and allegations in a class-action racial discrimination lawsuit that the CHP's exam process is fraught with bias and subjectivity. The plaintiffs lost the lawsuit, which is on appeal, but say that the recent audit validates some of their charges about the tests' unfairness.

"The exam on its face looks like it's fair," said Della Bahan, attorney for plaintiff Jeff Paige. "But there are so
many ways to manipulate the system to get who they want."

CHP Commissioner Mike Brown, who took over the top job after the flawed deputy chief's exam, said the department dealt with the isolated testing problems as they cropped up. He rejected the idea that irregularities are prevalent or that the various incidents are related. At the same time, Brown said safeguards have been put in place to assure the fairness of a new deputy chief's exam, which is under way.

The CHP, for instance, now will keep the notes taken by panel members who conduct the tests, instead of letting the panelists keep them. The Personnel Board also will oversee the new deputy chief's test, including reviewing "every piece of paper," said Karen Coffee, chief of the board's merit employment and technical resources division.

The board already decertified Paula Guzman, chairwoman of the deputy chief's exam panel, who was paid an hourly rate to oversee test panels for the CHP and other state departments. "That's the person, in our opinion, who fell down on the job," Coffee said.

Guzman, who lives in Fresno, declined to comment.

The Personnel Board has no plans to review other recent tests overseen by Guzman, Coffee said, unless it discovers irregularities in another exam.

The deputy chief's exam was meant to determine which assistant chiefs would become eligible for promotion to the higher rank, responsible for top-level administration. About 16 deputy chiefs oversee an operation of 10,000 CHP workers. They report to the commissioner's office.

Acevedo, an assistant chief who took the exam, raised questions about it after panel members questioned him about disciplinary actions taken against him called "memoranda of direction." Acevedo maintained during the exam that it was improper for the panel to bring up a personnel action that centered on a
telephone conversation he had with a retired officer.

Acevedo had complained that the department allowed some officers to continue working past the mandatory retirement age of 60, and had talked about alerting the media to it.

Acevedo also had received a memorandum related to an incident in which he allegedly showed others in the
department explicit photographs of a CHP officer with whom he'd had a consensual affair. The female officer filed a lawsuit. A federal judge dismissed her allegations of sexual harassment, leaving a complaint of invasion of privacy and infliction of emotional distress still to be decided.

Because of the questions raised about the deputy chief's exam, CHP Commissioner Brown in April asked the State Personnel Board to review it. The audit found several inadequacies. Some had to do with violations of strict procedures required of all state promotional exams. The CHP, for instance, failed to show that the exam questions were related to the duties of deputy chief and didn't fully document how it determined final

The interviewing panel showed possible bias against Acevedo, the audit found, because it asked him about the "memoranda of direction" but failed to do so with other candidates.

On the day of the test, the audit said, CHP Chief Counsel Jonathan Rothman sent Bob Giannoni, the chief of personnel, an e-mail that included the question about the personnel action to be asked only of Acevedo. The question then was passed along to the interviewing panel, which included Helmick, Guzman and CHP Deputy Commissioner Manny Padilla, who was also seeking the commissioner job.

"It was not appropriate for the panel to ask any questions that were not asked of all competitors; nor is it
appropriate to accept information from an outside source during the interview process," the audit stated.

Former Commissioner Helmick said that the panel members had been assured beforehand that the question was proper. "This is the highest rank in the Highway Patrol," he said. "If you can't ask something of that nature, then shame on all of us."

The Personnel Board would not release the name of the panel member who it found had challenged some candidates and asked others leading questions. The board said it doesn't normally name people in reports who are not being disciplined. Because the name is not in the report, it is not a public record, the board said.

The CHP initially urged the Personnel Board not to kill the whole test, because that would punish worthy officers who passed the exam and had nothing to do with the irregularities. "We had some people in good faith who came into that examination and did a good job," said Commissioner Brown.

A number of deputy chief vacancies have been held open, Brown said, causing an inconvenience but not a major effect on operations.

In November, the CHP demoted a captain two ranks to sergeant after it discovered he had discussed the questions in a sergeant's exam with one applicant. That applicant then talked about the test questions with several others, leading to the exam's cancellation.

Rick A. Linson is appealing his demotion to sergeant. He could not be reached for comment.

California Highway Patrol - CHP Officer Arrested In Sex Sting In Laguna - Feb. 23, 2006, The Orange County Register

CHP Officer arrested in sex sting in Laguna
The 51-year-old was one of 13 charged with attempted child molestation in Internet operation.

The Orange County Register
Feb. 23, 2006

LAGUNA BEACH - A California Highway Patrol lieutenant was among 13 men charged with attempted child molestation Wednesday after an Internet sting that authorities called the largest of its kind in Orange County. Lt. Stephen Robert Deck, 51, of Carlsbad was arrested Saturday at a Laguna Beach park where police said he expected to meet a 13-year-old girl who wanted to have sex with him. Instead, he met a female police officer and was arrested.

"He was not feeling well. He showed signs of having a lot of anxiety," Laguna Beach Police Chief Michael Sellers said.
Some of the other men who went to Laguna Beach, purportedly to meet 12- and 13-year-old girls, tried to run away.
"We arrested all 13 in 11 hours. We could have arrested more, but we've tapped our resources for now," Sellers said.

Deck was assigned to the San Juan Capistrano station and is on retirement status after 23 years on the force, CHP Sgt. Rosemary Manjarrez said. She was unable to say when Deck's retirement began, but the District Attorney's Office reported that he was on active duty when the arrest took place.

All 13 men, ranging in age from 19 to 51, face four years in prison if convicted, District Attorney Anthony J. Rackauckas said. The sting began Feb. 9 after Laguna Beach police contacted, which had helped Riverside County police snag 49 people last month. The site's operators carried on an Internet chat that led to the Orange County suspects' rendezvous with Laguna Beach police, authorities said. The chat was designed to prevent situations that could bolster an entrapment defense, such as making sure the defendants suggested the sex, Sgt. Darin Lenyi said.

The men were subtle in their initial approach to what they thought were young girls, Rackauckas said. "The conversations all started out innocent, talking about food, parents and makeup, and soon turned into a sickening perversion," the district attorney said. Most of the suspects traveled to a Laguna Beach apartment, but Deck changed the meeting spot to the park, authorities said. One suspect had a rose for his intended sex partner, most carried condoms, one brought drugs and one had pornography, authorities said.

California Highway Patrol - Officers Involved In Scandal and Misconduct

In this case, the report notes that even the CHP's own Internal Affairs Office can't be trusted, as about half the officers interviewed were part of scandal or misconduct cases. Wow.

No Justice in Battering Cop Case -

In response to our last newsletter, hundreds of you sent postcards to the California Highway Patrol and public officials demanding they reopen the internal investigation into domestic violence allegations against CHP Officer Curt Lubiszewski. Lubiszewski was acquitted of those charges after a highly irregular, nightmare criminal trial that effectively prosecuted victim Mitzie Grabner and the Purple Berets rather than Lubiszewski. (For a full report of the trial, see the Violence Against Women Section of our website.)

Still, there was explicit evidence of domestic violence against two different women over a 14-year period, a threatened restraining order by a third, as well as testimony to Lubiszewski's threats to "eat his gun." Surely that's enough to allow the CHP to take disciplinary action (preferably firing) to rein in their woman-hating officer.

There was also the CHP internal "investigation" conducted by Lubiszewski's sergeant and longtime friend, Scott Bertelson. It was an investigation littered with halfhearted interviews, witness intimidation, and vows by his commander that Lubiszewski wouldn't be disciplined unless convicted in criminal court. (Neither CHP policy, nor any other police policy would agree.) Not surprisingly, the "investigation" concluded that the domestic violence allegations were "not sustained."

Since the CHP's internal affairs (IA) policy provides for a higher level review when the complainants feel the investigation's findings were bogus, Mitzie Grabner, Bonnie Garrett (Lubiszewski's ex-wife for 9 years) and Purple Berets filed separate requests for such a review in May. The Berets request outlined six areas of biased or insufficient investigation (including a number of complaints that were never investigated), and detailed at least seven violations of the CHP's own Internal Affairs policies in the conduct of the investigation.

Our complaints had hardly had time to reach Sacramento when we all received form letters saying the prior investigation was just fine and there would be no review. Shortly afterwards, letters followed from Attorney General Bill Locker and Gov. Arnold ("The Groper") Schwarzenegger putting their official stamp of approval on the CHP's whitewash. At this point, all efforts to get the CHP to clean out the batterers in their midst have stalled.

Why the CHP Case Went Nowhere
In the days and weeks following the trial and the CHP's refusal to review the case, a number of striking facts surfaced that just might shed some light on why things came down the way they did. Nearly every officer or command staff-person who reviewed the case has himself been implicated in some type of scandal or misconduct.

Capt. O'Shea was commander of the Rohnert Park CHP office when the original complaints were filed. He had ultimate responsibility for the investigation, and it was he who had Curt's buddy head it up, despite our protests. Early on, both the victims and Purple Berets had meetings with O'Shea. Immediately thereafter, the captain was put "on leave" and unavailable for comment.

Not long after the trial, Purple Berets received the following e-mail, quoting a source inside the CHP:

Well, O'Shea got caught with his pants down. The CHP did their usual run around ... going to fire him but then let him off and retire early kind of crap! I wonder who else in that RP office knew of this stuff and who was covering for whom??? What is up with that particular office??

Then there's CHP Commissioner D.O. "Spike" Helmick, who headed up the Sacramento commission that made the final decision not to sustain any of the domestic violence complaints against Lubiszewski. Imagine our surprise when we turned on TV news one night to see Helmick blubbering tearfully on camera and announcing he would be "retiring" and replaced as head of the commission. We've never learned why he was removed . . . only that, in his own words, "(Sniffle) I don't want to go!" (A purple beret to anyone with information on what led to Helmick's dismissal!)

Then on July 9th, news hit that CHP Assistant Chief Art Acevedo, a prominent candidate to replace Helmick, was in trouble. According to the Press Democrat, Acevedo "has been the subject of a recent state sexual harassment investigation and a $5 million civil claim for allegedly showing nude photographs of a subordinate officer to high-ranking officials while on duty . . . Acevedo kept sexually explicit photographs of the woman in the glove compartment of his state-issued car and displayed them to various supervisors between 1995 – when his brief affair with the officer ended – and 2002, according to claims filed with three state agencies . . ."

When he took the photos, Acevedo was a sergeant – guess where! – in the agency's internal affairs bureau! At the time the lawsuit was filed, the CHP had taken no disciplinary action against Acevedo.

California Gov. Arnold Schwarzenegger could, with a stroke of a pen, re-open the Lubiszewski investigation or, better yet, initiate a statewide investigation into the Highway Patrol. But the governor has his own problems with sexual harassment and assault, and is un-likely to do the right thing to protect women from male violence. Nor is Attorney General Bill Locker, who has refused to investigate both the governor and Lubiszewski.

Rotten to the Core
So frankly, we're stumped as to where to turn for justice. Clearly the Highway Patrol is incapable of investigating its own officers for domestic violence or sexual harassment/assault. We're currently looking into possible action by the California Assembly and others.

In the meantime, one thing is clear: any woman who gets involved with a CHP officer does so at her own risk.

The Only Good News: the District Attorney
But there is one ray of hope for victims of police domestic violence. After the CHP verdict came down, Purple Berets met with D.A. Stephan Passalacqua to discuss how his office could ensure that future cases have at least a chance for justice.

Passalacqua agreed to have a deputy D.A. respond to the scene of police-involved domestic violence cases, just as they do in homicides. He also agreed to have either his investigator or one of the specialized police domestic violence teams do the investigation under the D.A.'s direction. At the very least, a deputy D.A. will be present in all police interviews with the victim.

He also agreed to statistically track these cases, and investigate other necessary changes to insure that other women being beaten by cops won't have their cases destroyed like Mitzie Grabner's. It's a start.

California Highway Patrol Accused Of Racial Profiling In 2003, Settled Case - SF Gate

The question is does the CHP still do this and who's minding the store? If the CHP is using a device that gives higher than actual blood-alcohol reading and sill stop moslty minorities, then the problem still exists but at an even more dangerous level because Latinos and Blacks are being not only infairly stopped, but wrongly convicted.

CHP settles profiling lawsuit
Safeguards against racial bias include limits on car searches
Bob Egelko, Chronicle Staff Writer
Friday, February 28, 2003

Printable Version
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Settling a class-action lawsuit accusing it of targeting minority drivers, the California Highway Patrol agreed Thursday to unprecedented restrictions designed to ensure that traffic stops are made on the basis of wrongdoing, not race.

The agreement, subject to approval by a federal judge, ends a 1999 lawsuit by three motorists who claimed they were victims of racial profiling. The settlement follows the CHP's own finding in 2001 that blacks and Latinos were far more likely than whites to be pulled over for routine stops by its officers.

Racial profiling of drivers already is illegal. The settlement is directed at law enforcement practices that affect all motorists but are used disproportionately against minorities, according to the American Civil Liberties Union of Northern California, which represented the plaintiffs.


A key provision is a ban on so-called consent searches, which allow officers to inspect cars by relying on the driver's permission even without evidence of drugs or other contraband. Consent searches, a common police practice, have been upheld by courts, but civil rights groups say the practice is coercive and invites discrimination, particularly for drivers with language barriers.

The CHP banned consent searches in April 2001, the first law enforcement agency in the nation to do so, after its own study showed that Latinos were three times as likely as whites to be pulled over in central California, while African Americans were twice as likely as whites to be stopped.

The settlement will extend the ban for three years, making the CHP the first agency in the United States to be bound by a court order against consent searches, lawyers in the case said.

The agreement also will ban officers from stopping vehicles for traffic violations as a pretext for looking for drugs. Drug searches would have to be based on objective evidence -- not just a mere suspicion or hunch -- that drugs are likely to be found.

Pretext searches were upheld in 1996 by the U.S. Supreme Court, which said an officer can search a car for contraband after making a legal traffic stop. But attorneys for the drivers in the profiling suit said the practice took on a more sinister cast when minority motorists are stopped and searched at disproportionate rates.


The settlement also requires the CHP to continue collecting data on every traffic stop, including noting the driver's race or ethnicity, the reason for the stop and the results. A new element will require a record of the duration of each stop. ACLU lawyers said they wanted to keep track of routine stops that turned into half-hour detentions and searches.

Patrol supervisors will be required to keep track of officers' daily records. The CHP will designate an auditor to review the data and citizen complaints.

A federal judge in San Jose is scheduled to consider preliminary approval of the settlement in April.

Attorneys for the ACLU called the settlement a landmark that would protect minorities from harassment without hindering law enforcement.

"It protects motorists from racial discrimination and, if vigorously implemented, will increase public trust and confidence in the CHP," said ACLU attorney Alan Schlosser.

Noting that profiling has been promoted as a weapon against terrorism since Sept. 11, 2001, Schlosser said the settlement served as a reminder that profiling was "counterproductive -- it creates distrust and hostilities with the very communities with which law enforcement should be working."

The CHP, which admitted no wrongdoing, said the agreement largely required it to continue its current practices.

"We feel very strongly that we do not racially profile and never have," said CHP Commissioner Dwight "Spike" Helmick.

Helmick said the patrol does not conduct pretext searches for drugs and has not been hampered by its voluntary ban on consent searches.


In addition to the restrictions, the settlement requires the state to pay $875,000 for the plaintiffs' legal fees and costs, of which $50,000 will go to each of the three drivers in the original case, said plaintiffs' attorney Jon Streeter.

The first to sue was Curtis Rodriguez, a San Jose attorney who was pulled over and searched by the CHP in June 1998 after watching patrol officers stop other Latino drivers in Pacheco Pass on Highway 152.

"I think they did stop the wrong guy," Rodriguez said at Thursday's news conference in the ACLU's San Francisco office.

Racial profiling has been a contentious issue in California. Davis vetoed a bill in 1999 that would have required all police departments in the state to compile racial and ethnic information on vehicle stops, saying it would be too burdensome. He later issued an executive order requiring the CHP to collect the data of its stops and signed legislation requiring police training to prevent profiling.

The extent and causes of racial profiling remain hotly disputed. Faced with statistics showing that minorities are stopped and searched more often than whites, law enforcement agencies have commonly explained that the disparities reflect high crime rates and enforcement needs in particular neighborhoods.

But plaintiffs' attorneys said curbing consent searches would reduce discriminatory enforcement.

"Most people will simply give consent, particularly when you've got a language barrier," said Streeter. As a result, he said, an encounter that may begin with a stop for a broken taillight turns into a "fishing expedition for drugs, usually a half hour or more, with intrusive questioning" unrelated to the traffic stop.


-- Extend its current ban on consent searches after vehicle stops.

-- Require its officers to have objective evidence that drugs will be found before searching a vehicle for drugs.

-- Require that its officers document every vehicle stop, recording driver's race or ethnicity, the reason for the stop and any subsequent search, the duration of the stop and the results.

-- Require that each officer's supervisor review the documentation each day.

-- Designate an auditor, who will report directly to the CHP commissioner, to review the data regularly. -- Pay $885,000 to the plaintiffs for legal fees and costs.

Wednesday, November 22, 2006

California Highway Patrol Uses Faulty "Intoxilyzer 5000" in DUI Stops; How Many People Falsely Accused?

Running around with a device, the Intoxilyzer 5000, causing higher than is actual blood-alcohol levels, CHP has gained a substantial number of DUI arrests.

In this case, 31 people in just six hours using "roving patrols" -- but how many of the DUI arrests were based on "good" data? With this problem of the bad readouts from the Intoxilyzer 5000, it's possible that all of them may have been invalid.

California Highway Patrol Uses Faulty "Intoxilyzer 5000" in DUI Stops; Produces Too-High Blood-Alcohol Readings

The California Highway Patrol, working with many California counties like Alameda and San Luis Obispo use a DUI breath-test device called a "Intoxilyzer 5000."

But this widely used instrument is faulty by design and has caused blood-alcohol levels that are far higher than what they really are, and has been found to have a false-positive reading that's up to 27 percent in error. This means that the defendent could actually have a blood-alcohol level of .07, one-point under the limit, and still test at .09 (though some readings have been as high as .18) with the use of the Intoxilyzer 5000.

The proof of this is in a study called "Variables Affecting the Accuracy and Precision of Breath Alcohol Instruments Including the Intozilyzer 5000" and available with a click on that link as a PDF file. The study was released on July 7, 2003.

The study reports:

"Breath testing instrument have been used extensively for the determination of ethanol in
medicolegal investigations due to the simplicity in their operation, the relative portability of the
instruments and the immediately available results. Unfortunately, breath alcohol instruments
universally are prone to false positives (i.e. instrument reports ethanol is present when in fact it is
responding to a different chemical) and falsely elevated breath values when ethanol is present
(due to a variety of factors).

The Intoxilyzer 5000 breath alcohol instrument is no exception and
numerous studies have documented some of the sources of the errors with this instrument. The
major types of variables discussed in this chapter include physiological (biological) variables and
analytical (instrumental) variables with overlap between the two. The uncertainty in evidential
breath-analyzer readings for a random subjects in the post-absorptive state has been determined
to be as much as ±27% with over 90% of this uncertainty due to biological variables of the
subject and at least 23% of subjects having their actual blood-alcohol concentration

Yet, with this enormous problem, the Intoxilyzer 5000 continues to be used by California Highway Patrol in DUI stops. This raises the possibility that many defendants were wrongly accused based on faulty data. The State of Georgia uses the device and the same problems have been faulty bloof-alcohol readings have been noted.

This is the same problem that came up just last year in the State of Florida. There, after defense lawyers noted the same faulty reading problems and asked for the prosecution to have the Intoxilyzer 5000's source code presented , the manufacturer failed to do so. Thus, the Florida Courts disallowed use of the results of DUI breath-tests conducted with the Intoxilyzer 5000.

Here's the report that's available on the link above:

Article published Nov 4, 2005
Surprise court ruling threatens to nullify results of DUI tests


(What the judges said: "Full information should include the software that runs the instrument. Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains ... nothing more than a 'mystical machine' used to establish an accused's guilt.")

VENICE -- In a decision that could throw out the use of alcohol-breath test results in Sarasota County drunken-driving cases, a panel of judges ruled that defendants are entitled to inspect the source code of the breath-testing machine's software, though the manufacturer has refused to divulge it.

Three Sarasota County judges surprised prosecutors Wednesday when they sided with Venice defense attorney Robert Harrison by giving the state 15 days to produce the machine's source code for the defense.

The catch: the Kentucky-based manufacturer, CMI Inc., has refused to turn over the code -- the electronic instructions that drive the machine -- calling it a trade secret.

Prosecutors, who are considering an appeal, say the company's refusal leaves their hands tied in the 157 DUI cases for which the order now applies and whose attorneys received copies of the Wednesday motion.

The order, prosecutors say, threatens to nullify breath test results from the Intoxilyzer 5000, which police statewide use to measure whether a driver's blood-alcohol content exceeds the .08 legal limit. Those results can often be one of the most damning pieces of evidence introduced in a DUI case.

"We're disappointed with the result. It seems to be an effective suppression of all the breath tests," said assistant state attorney Jason Miller, who fought the motion. "We don't have the information that the court has ordered us to get. We can't get the information that the court has ordered us to get. If we did, we would comply with the judge immediately."

Attorneys close to the case expect the state's attorney to appeal. In the meantime, police will continue to the use the test despite the deadlock over source code.

The decision also reverberated across the Internet on forums and techie Web sites, whose users hailed it as an important step forward in the legal crusade to open up the inner workings of other government computers, such as voting machines. By 8 a.m. Thursday, 12 hours after posting a link to the court order, a local blog,, logged a record 13,000 hits.

The ruling isn't the first of its kind in Florida. Last November, judges in Seminole and Orange counties decided to exclude Intoxilyzer 5000 breath-test results from hundreds of cases. But judges in two other Florida counties have ruled otherwise, upholding prosecutors' arguments that they can't turn over something they do not possess and that the code itself is immaterial to the DUI cases.

CMI, the manufacturer, has "been consistent in defense of their trade secret," said assistant state attorney Miller. "We're really unable to provide a secret of theirs."

The order would allow the company to turn over the machine's source code under a protective order that would keep the information from the public record.

CMI refused to comment Thursday.

In the court's 11-page order, the judges cite a Florida law that requires that someone who is tested by a machine be granted "full information" about the test upon request. The ruling represented a broader interpretation of a phrase that has, in the past, applied primarily to manuals and electronic schematics.

"Full information should include the software that runs the instrument," reads the order, signed by county judges David Denkin, Kimberly Bonner and Judy Goldman. "Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains .... nothing more than a 'mystical machine' used to establish an accused's guilt."

The judges ruled that a look at the source code was material to the case, based on photographic evidence that showed visible differences in the arrangement and number of erasable and programmable memory chips inside Intoxylizers now in use throughout Sarasota County.

An expert witness testified that without the source code, he would be unable to determine whether any changes or modifications had occurred.

"It may be something innocuous," Harrison said. "It may be something nefarious."

Other nuances within the code, such as how and when the machine rounds numbers, could provide fodder for the defense of accused drunken drivers who test on or near the legal limit.

"When you do a case-by-case analysis, there will be certain cases where the loss of a breath test isn't a big deal," Harrison said. "There's other cases, where, if you take out the breath test, they've got nothing."

Prosecutors have 15 days to appeal the ruling or produce the machine's source code. Attorneys close to the case expect an appeal, which could go before 12th District Circuit Judges within the county or to the state's 2nd District Court of Appeal in Lakeland. It would have little direct effect on cases outside of Sarasota County, though a Manatee County judge joined the three Sarasota judges in hearing the arguments.

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Florida Courts Debate Admissibility of Breath Tests in DUI Cases
December 19, 2005

News Summary

Florida court battles over the software used in breath analyzers are threatening the admissibility of blood-alcohol level evidence in driving under the influence (DUI) cases, the Wall Street Journal reported on Dec. 16.
Defense lawyers in eight counties have challenged the reliability of breath analyzing instruments made by CMI Group, demanding to see the original source code that determines blood-alcohol levels used as evidence against their clients. CMI contends that the information is proprietary, a "trade secret" that must remain concealed, according to Allen Holbrooke, outside attorney for CMI.

One state appeals court ruled last February that the defense was entitled to "full information" about these tests in order for the evidence to be admissible in court. Later, a ruling that applied this decision to CMI's source code resulted in the discarding of 1,000 breath tests from Seminole County court cases this year. Sarasota County will have to dispose of the tests used in 156 DUI cases if CMI continues to withhold the information.

"One should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," wrote the Florida Fifth District Court of Appeal.

"If we're determining guilt by machine, we have to take into consideration that there are isolated computer glitches that could affect the test," argues Stuart Hyman, a Florida criminal-defense attorney. CMI may have made substantial modifications to the software without obtaining state approval, he contends.

"My feeling is that what's going on in Florida is the defense is going on a fishing trip," says Rankin E. Forrester, the CEO of Intoximeter, a rival company of CMI. Intoximeter includes a mechanism in its breath analyzers showing that the software has not been modified.

The problem could be solved with a simple nondisclosure agreement to protect the information once it is handed to the court, says John Fusco, chief executive of National Patent Analytical Systems Inc., another rival company.

"The instruments are checked for accuracy and reliability, and in most states that's good enough," says Bill Scholfield, CMI's manager of engineering. The products of CMI's rival companies may be used if CMI continues to be uncooperative, however, and if the litigation begins to affect business, "then we'll probably have to do something," Scholfield admits.

"The ramifications [of this litigation] could be extreme," warns Donald Hartery, assistant state attorney in Sarasota County. "It could effectively suppress every breath test in Florida, and if other states went that way, every breath test in the U.S."

As many as 95 percent of DUI convictions rely at least in part on breath test evidence, experts say. Although CMI's products are used in 41 states, the legal issue has so far only taken hold in Florida, with courts in four counties backing defendants' challenges to the software.

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KRS 189A.103 Consent to tests for alcohol concentration or substance which may impair driving ability -- Test procedures -- Who may administer - Personal testing.

3) The breath, blood, and urine tests administered pursuant to this section shall be
administered at the direction of a peace officer having reasonable grounds to believe
the person has committed a violation of KRS 189A.010(1) or 189.520(1).
(a) Tests of the person's breath, blood, or urine, to be valid pursuant to this
section, shall have been performed according to the administrative regulations
promulgated by the secretary of the Justice Cabinet, and shall have been
performed, as to breath tests, only after a peace officer has had the person
under personal observation at the location of the test for a minimum of twenty
(20) minutes.

(4) A breath test shall consist of a test which is performed in accordance with the
manufacturer's instructions for the use of the instrument. The secretary of the Justice Cabinet shall keep available for public inspection copies of these manufacturer's instructions for all models of breath testing devices in use by the Commonwealth of Kentucky.

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Commonwealth v. Roberts, Ky., 122 S.W.3d 524, 528 (2003).

The Court's holding, according to relevant cases, statutes and administrative regulations, was that the foundation requirements for admission of a breath test are as follows:

[26] 1) That the machine was properly checked and in proper working order at the time of conducting the test.

[27] 2) That the test consist of the steps and the sequence set forth in 500 KAR 8:030(2).

[28] 3) That the certified operator have continuous control of the person by present sense impression for at least twenty minutes prior to the test and that during the twenty minute period the subject did not have oral or nasal intake of substances which will affect the test.

[29] 4) That the test be given by an operator who is properly trained and certified to operate the machine.

[30] 5) That the test was performed in accordance with standard operating procedures.

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500 KAR 8:030. Administration of breath alcohol tests and chemical analysis tests.
NECESSITY, FUNCTION, AND CONFORMITY: KRS 189A.103(3)(a) requires the cabinet to promulgate administrative regulations establishing procedures for administering breath alcohol tests and chemical analysis tests of blood and urine. This administrative regulation establishes procedures for administering those tests.
Section 1. The following procedures shall apply to breath alcohol tests:
(1) A certified operator shall have continuous control of the person by present sense perception for at least twenty (20) minutes prior to the breath alcohol analysis. During that period the subject shall not have oral or nasal intake of substances which will affect the test.
(2) A breath alcohol concentration test shall consist of the following steps in this sequence:
(a) Ambient air analysis;
(b) Alcohol simulator analysis;
(c) Ambient air analysis;
(d) Subject breath sample analysis; and
(e) Ambient air analysis.
(3) Each ambient air analysis performed as part of the breath alcohol testing sequence shall be less than 0.01 alcohol concentration units.


With all of this damning evidence, the "Intoxilyzer 5000" continues to be used by CHP, even as newer and better devices are introduced. This means that many California DUI suspects may have been wrongly accused of being over-the-limit, but didn't have the resources to defend their case.

More evidence on California's use of this faulty device and its problems in the next posts.

California Highway Patrol Reform Now!