LawReader thanks Lexington attorney Steve Isaccs for reference to the following articles which show some issues being raised about the accuracy of the BA machine.
The Ky. Supreme Court recently denied access to the source code on the Intoxilyzer 5000 (House v. Commonwealth) but did so on the basis that the defendant did not provide a sufficient foundation to justify a subpoena for the source code, and they said they would not condone a “fishing expedition”. Steve Isaccs suggests that the following resources might provide the “foundation” required by the Ky. Supreme Court before they would look favorable on a subpoena for the BA source code.
See excerpts from West Publishing Book:
San Diego DUI criminal defense attorney news http://www.sandiegoduihelp.com/duiblog/2008/02/intoxilyzer-5000-dui-breath-test-attack.html
DUI Intoxilyzer inaccurate when used by women, blacks
A genius Connecticut defense attorney said he has found further evidence of problems with a device used by police to measure DUI blood alcohol levels.
Hearings before the state Department of Motor Vehicles have revealed that the Intoxilyzer 5000 can give inaccurate results when used by women and African-Americans, said Jay Ruane of Shelton, whose practice focuses on DUI defense.
Ruane hopes that the evidence will eventually cause the state to cease using the Intoxilyzer because, he said, the accuracy issues mean that the device violates the equal protection clause to the state Constitution. He said the state should not use a machine that is “inherently biased towards a percentage of the population.”
“This is something of national significance I would think,” said Ruane. “It could be the start of a national trend.”
There are about 170 Intoxilyzers in use in Connecticut, with each one costing about $5,000. The manufacturer, CMI, a Kentucky-based corporation, acknowledges an overall margin of error of up to 10 percent, but does not concede that the variations can be explained by the gender or race of the user. Connecticut State Police have repeatedly defended the accuracy of the device.
New Britain Superior Court Judge George Levine ordered the DMV hearings in 2006 while presiding over a drunken driving case involving two men, represented by Ruane, who failed Intoxilyzer tests.
Most the hearings took place in the fall. In covering one of them, the Law Tribune reported on testimony that the device was less accurate when used by shorter people and people with asthma and other lung disorders. An expert also testified that the way a person breathes into the machine could affect the reading.
Attorneys for both sides had until Feb. 15 to submit final briefs. In doing so, Ruane emphasized evidence that he said showed the machines have accuracy issues when used by women and blacks.
Dr. Michael Hlastala, of the University of Washington, who does forensic consulting in physiology of breath testing and alcohol in the body, testified at one hearing that a woman who ingests the exact same amount of alcohol as a man will produce a breath reading that exceeds the man’s by 5.6 percent.
“Thus, a 5.6 percent margin of error is implicit in every case where a woman is the arrestee giving the breath sample,” argues Ruane.
Further, Hlastala testified that the lung capacity of an African-American male is approximately 3 percent smaller than a Caucasian. “Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3 percent,” Hlastala concluded.
Dr. Robert Powers, the state’s chief toxicologist, did not rebut any of the newfound evidence during the hearings, Ruane said. Attorneys handling the matter for the DMV could not be reached for comment as of press time Thursday.
The DMV hearing officer, attorney William Grady, will take all of the evidence submitted by both sides and submit the findings to Levine. Ruane estimates that it will be two or three months before any further action is taken.
He said the losing side would likely appeal the decision in the state Appellate Court. He said the dispute is, at this point, “one-third to halfway through a very long process.” •
Galileo Galilei has something to say about this case.
In 1632, Galileo published his scientific research confirming the scientific fact that the Earth revolved around the sun. This work supported the prior work of Nicolaus Copernicus, but directly contradicted the scientific belief originally developed by Aristotle (383-322 BC) that the sun revolved around the Earth. The Catholic Church, and especially the Pope and Vatican authorities, summoned Galileo to the Inquisition (1231-1820) to confront him and demand a retraction of his “heresy”. Galileo eventually succumbed to the threat of death and pleaded guilty to “vain glorious ambition and pure ignorance and inadvertence”. He died in Arceti in 1642, but not before inscribing the following in the margin of his copy of the Dialogue:
“When people of whatsoever competence are made judges over experts and are granted authority to treat them as they please…these are the novelties that are apt to bring about the ruin of commonwealth and the subversion of the State.”
Santillana, G. de, The Crime of Galileo (1961)
In 1992, 350 years later, Pope John Paul II acknowledged that Galileo was correct. In the course of these proceedings, Michael Hlastala, Ph. D. testified for the Petitioners and expressed the same idea as Galileo:
Cross Examination by Attorney Parker-Bair
Q Okay. And in keeping with that line of questioning if I may, Doctor Hlastala – strike that. Let me restate the question. Doctor Hlastala, have you engaged in any discussions with the forensic community with regards to these beliefs with respect to your positions and views?
A You bet. And I have expressed that to the forensic people and in our state, and I’ve also indicated that here in Connecticut. I have testified in individual trials related to that. I mean this is a paradigm shift; it takes time for that to be learned. You know when we talked about the Sun rotating and going around the Earth it took years and years, if not hundreds of years for that finally to be accepted.
(T 2B, p 61)
The instant cases expose the scientific weaknesses and biases of the Intoxilyzer 5000 EN, and demonstrate how and why the test results do not establish the true blood alcohol content of the suspect. The evidence from Dr. Hlastala stands unchallenged and unrebutted by the Department of Motor Vehicles, and fully answers many of the Court’s questions on remand.
WHAT DOES THE INTOXILYZER 5000 MEASURE? SPECIFICALLY WHAT DO THE TEST STRIPS PRODUCED BY THE INTOXILYZER 5000 MEAN IN TERMS OF THE RATIO OF ALCOHOL IN A PERSON’S BLOOD?
The Intoxilyzer 5000 measures the amount of organic material in an air sample (T2, p 45). The test strips produced by the Intoxilyzer 5000 indicate, according to Dr. Powers, an amount of alcohol stated in grams (weight) in a volume of 210 liters of breath which is equivalent to the volume of 100 milliliters of blood (T2, p 42, 46).2 These results are not 100% accurate in every case (T2a, p 29). The Department contends that this reading, if accurate, is equal to the amount of alcohol in the arrestee’s blood because there is a “general expectation of equivalency” (T2, p 46). The Petitioners claim that for multiple reasons, the Intoxilyzer 5000 does not measure the alcohol in the arrestee’s blood. The paradigm upon which the Intoxilyzer 5000 is based relies on a number of assumptions:
That the machine measures only alveolar air.
That any alcohol in the mucosa of the trachea and bronchi does not affect the alveolar air as it leaves the body.
That the mathematical ratio (Partition ratio) used to calculate the blood alcohol content is the same for all people.
The old paradigm believes that in the deepest part of the human lung, a thin membrane separates the inspired air from the blood flow. It is at this point that the alcohol in the blood flows through the membrane and into the air in the alveolar sacs. If the alcohol in the alveolar sacs is measured by a factor called the partition ratio, the amount of alcohol in the blood can be quantified (T2 p 50). Thus, in order to make the measurement, it is required that the machine measure the breath from the alveolar sacs, and Regulation 14-227a (10)(b)(1)(a) requires that the air sample be alveolar in nature (T2 p 51). This alveolar air quickly overwhelms the air in the trachea and the bronchi, and because it has the highest value, is the most practical basis for a determination of breath alcohol content (T2 p 54).
Yet despite this theoretical foundation for the operation of the Intoxilyzer 5000, Dr. Powers could not guarantee definitively that the machine actually does measure alveolar air (T3 p 58) which is required by the Regulation (T2 p 58). Similarly, despite Power’s testimony that on expiration alveolar air would “quickly overwhelm” tracheal and bronchial air, (T2 p 54) he conceded that upon expiration the tracheal and bronchial air would be the first to leave the airway (T2 p 56). Thus, how the tracheal air can be overwhelmed if it leaves the expiration track first remains a mystery.
The onward march of science has created a new paradigm as explained by Dr. Hlastala, an expert in lung physiology (T2B p 6, 8). The old paradigm believed that upon expiration the breath alcohol content would eventually level off, and this leveling would indicate that it was alveolar air that was being sampled ( T2B, p15,17. Exhibits 5 and 6). However, later studies have shown that the breath alcohol content does not level off, but continues to rise (T2b, p 18). This finding contradicted the old paradigm, and called for further study. Such study revealed that the alcohol measured by the Intoxilyzer 500 EN was alcohol from the mucous in the trachea (T2B, p 21). Because the alcohol from the mucous already saturated the breath, it is impossible to pick up any alcohol from the alveolar air (T2B p 22). The old paradigm relies on a belief that the amount of alcohol does not change because it is from the alveoli. However, because breathing pattern can affect the amount of alcohol in the breath, the old paradigm simply is not scientifically sound (T2B p 22, 23, 24, 25). In addition, while the old paradigm is premised upon an analysis of alveolar air, the new paradigm demonstrates that you can never reach alveolar air (T2B, p 27) without it interacting with the mucous (T2B, p 34).
A crucial factor in the assessment of breath alcohol content is the blood/breath ratio – also known as the partition ratio. Both Dr. Powers and Dr. Hlastala agree that:
1. The Intoxilyzer 5000 EN does not determine the partition ratio of the arrestee.
2. The machine is programmed at a partition ratio of 1: 2100.
3. Scientific studies have shown that the partition ratio in the human being can range from 1:900 to 1:3700 (T2B, p 59).
Exhibit 15 offered through the testimony of Dr. Hlastala demonstrates the scientifically acceptable partition ratio for breath alcohol, based upon the work of A W Jones in 1982 ( T2B, p 38-39). The number 1 represents one molecule of alcohol in the gas per 1756 molecules of alcohol in the blood, at a constant temperature. ( T2B, p 40)
Dr. Power’s credibility is strained, if not demolished, on this very point. He could not even properly define what the partition ratio was. When asked to explain the ratio he said:
“So it would be twenty four hundred liters of air or one liter of blood”
(T2, p 60)
“Volume of blood to volume of air each containing the same amount of alcohol. So we’re saying that the amount of alcohol that one would find in one liter of blood, we would expect to find that same amount of alcohol in twenty one hundreds of air. (T2, p 61).
This testimony clearly demonstrates that Dr. Power’s has the definition of partition ratio completely reversed. Such a glaring ignorance of a basic principle of breath testing impeaches anything he says about the science of breath testing. Combined with the undisputed evidence that he is neither a certified operator of an Intoxilyzer 5000 (T2a, p 28, 29) nor has attempted to obtain same (T2a, p 28 29); has no idea who wrote the first scientific paper on the old paradigm; cannot name any article as to the amount of time necessary to obtain an alveolar air sample (T2, p 58); cannot name any scientific article on breath testing (T2, p 58); has never read any article on the effect of ranitidine on breath testing ( T2a , p8), there remains no credible evidence that the old paradigm should retain any validity or that his testimony should be valued over the testimony of Dr. Hlastala.
WHAT DO THE TEST STRIPS MEAN IN TERMS OF THE RATIO OF ALCOHOL IN A PERSONS BLOOD?
Based upon the testimony of Dr. Hlastala, the simple answer is that the readings on the test strips do not indicate the true blood alcohol content of the arrestee. At best, they measure the breath alcohol that originates in the tracheal and bronchial mucous, and is deposited and re-deposited during the dynamic process of breathing (T2B, p 21-22). That is why the amount of breath alcohol continues to rise, and also why the reading can be substantially affected by the manner of breathing ( T2B p, 22-23). In short, the test strip readings do not accurately reflect any blood alcohol content of the arrestee, and in this – at least- Dr. Powers concurs. ( T2a, p 27,29).
IF THE INTOXILYZER 5000 MEASURES THE PERCENTAGE OF ALCOHOL IN TERMS OF A WEIGHT BY VOLUME RATIO OF ALCOHOL TO THE BLOOD, DOES THE INTOXILYZER 5000 HAVE THE CAPACITY TO CONVERT THAT WEIGHT BY VOLUME MEASUREMENT INTO A WEIGHT BY WEIGHT MEASUREMENT? IF YES, IS THERE A MARGIN OF ERROR IN THE CONVERSION BY AN INTOXILYZER 5000 FROM A WEIGHT BY VOLUME TO A WEIGHT BY WEIGHT MEASUREMENT?
CAPACITY OF INTOXILYZER 5000 TO CONVERT
Dr. Powers testified that the Intoxilyzer 5000 EN does not, as presently programmed, have the capacity to convert its weight by volume measurement of the grams of alcohol found to a grams of alcohol per grams of blood reading. (T 2a, p20-48; 25.) This is the fact despite the certification in Exhibit F that alleges that the machine is capable of a result consistent with Section 14-227a in its definition of elevated blood alcohol content (T 2, p 38). Powers acknowledged that the statutory definition has never been changed (T2, p 42) and remains grams of alcohol per 100 grams of blood. Thus, a measurement of grams of alcohol per 210 liters of breath still must undergo a conversion to satisfy the statutory definition. Thus, the simple answer to the Court’s question is “No”, as it is presently configured.
MARGIN OF ERROR
The second part of the Court’s question arguably encompasses two issues. The first is the mathematical conversion of a blood volume reading to a blood-weight reading. The second is the range of error inherent in the machine readings. The plaintiff’s will discuss these issues seriatim.
While the Intoxilyzer 5000 does not make a conversion to a weight to weight reading, it is beyond dispute that an expert can do so by subtracting five percent (5%) from the breath alcohol reading (T2, p 69; T2a, p 9, 15, 22; T2 p9.) This assumes that the machine reading is one hundred percent accurate. Dr. Powers, however, cannot even swear that the machine is so accurate at all times. (T 2a, p 27, 29). In addition, the Intoxilyzer 5000 publication itself concedes that it operates at a 3% margin of error. (Exhibit 2). Thus, to be minimally reliable under perfect conditions with a sample from a Caucasian male, the result would be reduced by 3%, based on the inherent margin of error of the machine and an additional 5% based on the conversion factor from breath to blood. At its very best, the machine is at least 8% too high when analyzing a breath alcohol sample for the perfect arrestee.
ADDITIONAL MARGINS OF ERROR ESTABLISHED BY THE EVIDENCE
An explained heretofore in Question 1, the Intoxilyzer 5000 is based on a scientific theory at odds with the present scientific understanding of the dynamics of breath alcohol. Even putting to one side the petitioner’s claim that the machine does not accurately measure a breath alcohol sample that is equal to a blood alcohol content, the machine functions in a way that is biased on grounds of gender, race, temperature and weight. Each of these said categories has been shown to affect the breath alcohol readings by a scientifically recognized factor, or a margin of error. (Exhibits 11,12,13,14,17,19,20) These grounds must be considered as additional factors that impact the reliability of the Intoxilyzer results:
GENDER MARGIN OF ERROR (FACTOR OF 5.6%)
Dr. Hlastala testified that the Intoxilyzer 5000 is biased against women by a factor of 5.6%. This is based upon the scientific studies compiled by AW Jones and I. Anderson in its 2002 study in Forensic Science International and reflected in Petitioner Exhibit 17 which is based on a lower partition ratio for females than males. It is quite apparent that, based on the old paradigm which underlies the Intoxilyzer 5000, a woman who ingests the exact same amount of alcohol as a man will produce a breath reading that exceeds the man’s by 5.6% (T2B, p. 43). Thus, a 5.6% margin of error is implicit in a every case where a woman is the arrestee giving the breath sample.
It is important to note that the scientific research has been peer reviewed, and is thereby accepted in the scientific community (T2B, p. 43). Yet, despite the presence of this research in the public domain, Dr. Powers, the defender of the Intoxilyzer 5000, has never heard of such a bias, (T2C, 27) and offers no rebuttal to this information(T2C, 28). He can point to no study that contradicts the bias inherent in the different partition ratios.
RACE MARGIN OF ERROR (Factor of 3%)
Dr. Hlastala further testified that the Intoxilyzer 5000 is biased against African Americans in that the lung capacity of the African American male is approximately 3% smaller than the Caucasian(T2B p. 37). Because of the smaller capacity an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3%. With the racial bias of 3%, and the factor in the 5% conversion from breath to blood, it appears that the African American’s loses any adjustment based on the breath-blood conversion while the Caucasian male does not. Again, Dr. Powers offers no rebuttal.
The constitutionally of biases based on gender and race will be addressed infra.
TEMPERATURE MARGIN OF ERROR
Above and beyond the issues of gender and racial bias, the temperature of the person giving the breath sample also injects a percentage of error in breath alcohol analysis. As explained by Dr. Hlastala, the pioneering work of Fox and Hayward on both hyperthermia and hypothermia demonstrate that temperature can play a pivotal role in the accuracy of a breath alcohol analysis. It is also important to note that the Intoxilyzer 5000 manual (Exhibit 2 , p24) contains a “temp check”, but that temperature check is only intended to prevent condensation of sample vapor in the machine – and not to adjust for a higher temperature of the breath sample due to the elevated body temperature of the arrestee. Moreover, in the display messages and commands (pp2-25 et seg) there is no message to alert the operator that the arrestee is producing a breath sample with an elevated temperature.
The conclusion of the Fox and Hayward study demonstrates that:
“… mild hyperthermia in humans does not alter the standard decay curve of BAC…but does significantly distort the BAC decay curve to an extent which would cause serious inaccuracy for prediction of BAC. The magnitude of the distorting effect of core temperature is too large (up to 23% with mild hyperthermia) to be ignored in breath-testing procedures.”
(Exhibit, p8 39)
As a result, Drs. Fox and Hayward counsel at least an 8.6% correction factor for every one degree centigrade (1°C) that exceeds normal body temperature. It is important to note that this work has been extant in the scientific community since at least 1988, well before the State certified the Intoxilyzer 5000 for use in evidence.
Despite the testimony of Dr. Hlastala on the effects of temperature on breath alcohol testing, and the scientific research in support of this testimony, State’s expert Powers denied that temperature could affect a breath sample (T2, p 70). He further opined that an increased temperature would be equilibrated in the intake tube and has no impact on the measurement of alcohol (T2 71). This testimony is wholly suspect because: first, he had never even read the research by Fox and Hayward; second, he was recalled as a witness after Dr. Hlastala testified as to the subject and refused – or was unable – to contradict anything said on the issue (T2a, p7; T2c p 27,28); third, by its very makeup in its manual, the “temperature check” is designed only to “prevent condensation of sample vapor” (Exhibit 2, p24) and NOT to measure the temperature of the breath sample. Dr. Powers’ ignorance of the mechanics of the Intoxilyzer 5000 is understandable given that he has never been certified as an operator thereof, and has never received training on the machine (T2a p28, 29). To repose trust based upon such ignorance would be akin to believing that the sun revolves around the Earth because the State announces it to be so.
DOES ONE TAKING A BAC TEST ON AN INTOXILYZER 5000 EXHALE 210 LITERS OF BREATH?
The direct answer to the question is No. The chamber containing the breath sample on the Intoxilyzer 5000 EN cannot accept 210 liters of breath (T2B, p 23) and Dr. Powers argued that a human being cannot exhale 210 liters of breath (T2a, p 23, T2B p 3).
UNDER WHAT AUTHORITY DID THE COMMISSIONER OF PUBLIC SAFETY AND MOTOR VEHICLES DETERMINE THAT EIGHT-HUNDRETHS OF ONE PERCENT ALCOHOL IN ONE’S BLOOD IS EQUAL TO THE NUMBER OF GRAMS OF ALCOHOL IN 210 LITERS OF BREATH?
A) Commissioner of Motor Vehicles
On November 28, 2007 John Yacavone, Chief of Motor Vehicles testified as to the Department’s position on this question (T3 p8). The Commissioner of Motor Vehicles did not make the determination set forth in the Court’s question (T3 p9). He believed that the Commissioner of Motor Vehicles did not have the authority to make such a determination (T3 p9). No regulation record as contemplated by Section 4-168b exists (T3, p10, 11).
Most telling of all, for the purposes of the case, was Yacavone’s assertion that the hearing officer is not required to know how the Intoxilyzer determines blood alcohol of an individual (T3 p 34) or to make that determination in each hearing (T3 p34-35). That is precisely the point of this appeal. If the hearing officer is not required to make a determination of blood alcohol content, then no finding of elevated blood alcohol content under Section 14-227b can even be made, and the Petitioners in these cases deserve the reinstatement of their driving privileges.
B) Commissioner of Public Safety.
Attorney Janet Ainsworth testified on behalf of the Commissioner of Public Safety. She was a staff attorney of the Department and assisted in the change in regulations in 2005 (T4, p. 4-5). As to the Court’s question, she testified that her department had the authority to adopt the regulations, and implicit in that authority was the “ability to create definitions” (T4 p16). However, she had no scientific knowledge at all (T4 p18). As a result, it was Dr. Powers who proposed the change in the regulation defining blood alcohol content (Regulation 14-227a 1-b(3)) as grams per volume (T4, p.17-18). Such a definition contradicts the statutory definition of elevated blood alcohol content found in Section 14-227a. Ainsworth agreed that the Commissioner’s authority to adopt regulations was settled as long as the regulations are not in conflict with the statutory law (T4, p.15-16) and she did not see any conflict (T4 p21), only a “clarification” (T4, p14). How a change from a weight/weight regulation to a weight/volume regulation amounts only to a “limited, technical” (T4 p13) revision defies the imagination.
Moreover, it was Ainsworth’s function to merely “plug in language into the draft and take it through the adoption process” (T4 p19). From this testimony it becomes clear that the sole movement for the equivalence between breath alcohol measurements was Dr. Powers.
He provided the language (T4 p 5, 7). He called it a “clarification” (T4 p 13-14). He provided no scientific articles in support of the change (T4, p7). The Commissioner received no other input from the manufacturer or other scientists (T4, p8). Indeed, the only persons consulted were two toxicologists (Dr. Powers and Dr. Pinder) a policeman and an assistant State’s Attorney (T4 p10).
In short, Dr. Powers applied the old paradigm of breath alcohol testing and had the Commissioner of Public Safety amend the regulations under Section 14-227a to fit this paradigm. The Commissioner accepted this change wholesale, and neither sought nor received any scholarly comment on the change. Nevertheless, the statutory definition of elevated blood alcohol content remains as the General Assembly drafted it, and there is absolutely no evidence in writing that the Commissioner of Public Safety even considered the statutory definition in this change (T4 p25).
HAS THE COMISSIONER OF PUBLIC SAFETY CERTIFIED THE INTOXILYZER 5000 AS “SUITABLE FOR USE IN TESTING AND ANALYSIS” OF BREATH IN ACCORDANCE WITH BOTH GENERAL STATUES 14-1227A (D) AND 14-227A-10B OF THE PUBLIC SAFETY REGULATIONS? IF YES, INCLUDE THE SUPPLEMENTAL ADMINISTRATIVE RECORD A COPY OF THAT CERTIFICATION.
The Department offered into evidence as Exhibit 7 a letter dated
by Commissioner of Public Safety Arthur Spada. This certified the Intoxilyzer 5000 as suitable for use in testing and analysis of breath for the presence of alcohol.
THE DEPARTMENT’S AMENDMENT OF REGULATION 14-227a (1b) DOES NOT SATISFY THE STATUTORY DEFINITION OF ELEVATED BLOOD ALCOHOL CONTENT.
For the reasons articulated heretofore, the petitioners submit that the amendment of Regulation 14-227a-(1b) clouded rather than clarified the way blood alcohol content is to be calculated under Sec. 14-227a. The Petitioners will demonstrate why Dr. Power’s interpretation is erroneous.
Dr. Power’s claims that in scientific circles, all assessments of breath alcohol content are reported on a weight-volume basis (T2, p 42). No doubt that is true. However, our Legislature has defined elevated blood alcohol content on a weight-weight basis in Section 14-227a, and thus hearings under Section 14-227b are bound by this definition. In order to avoid the clear language of this statute, Dr. Powers states that elevated blood alcohol content is measured on a weight-volume basis, and the amendment of Regulation 14-227-(1b) satisfies the statutory language because it measures, in part only, a weight of alcohol.
Thus, to overcome the statutory definition, Dr. Powers would use the weight of alcohol as the numerator, and the volume (210 liters of air or 100 milliliters of blood) as the denominator. This construction makes no sense because the use of the term “percent” demonstrates that there cannot be different numerators and denominators. It must be all volume or all weight. You cannot determine a percentage if you use 2 different factors because a “percent” implies that there is a uniform factor based on 100 of the same type. For example, how can .08 grams of anything be a percentage of a volume? You would have to convert the weight to a volume, and then determine what percentage that volume occupied based on 210 liters of breath as the “100”. Dr. Power’s testimony never addressed the “percent” issue inherent in the statutory definition, but it is a consideration which cannot be ignored since it totally undermines the logic of Powers’ testimony.
There is, however, a way to resolve the statutory terminology. If we utilize 100 grams of blood as the baseline (as Dr. Powers originally testified (T2 42)) then one percent (1%) of 100 grams is 1 gram. Eight-Hundredths of that one gram equals .08 grams.3 This interpretation is faithful to the statutory language and makes eminent sense. It avoids the thorny issue of trying to figure out how a weight can be a percentage of a volume, and is faithful to the common understanding of being “over .08”.
Petitioners submit that the convoluted description by Dr. Powers of the weight/volume results defy logic and produces bad scientific results. The change of the regulation on this basis hinders rather than clarifies the way that blood alcohol content should be assessed. Moreover, this strained reading of the statute demonstrates that the Department of Public Safety exceeded its regulation-making authority in adopting such a strained interpretation to buttress a breath testing method that fails to satisfy our statutory framework. These sound reasons of science, logic and policy sustain the Petitioner’s position that the regulatory change did not solve a problem inherent in the Intoxilyzer 500 – it only exacerbated it.
THE USE OF THE INTOXILYZER 5000 EN VIOLATES THE CONNECTICUT CONSTITUTION IN THAT IT IS BIASED AGAINST THE ARRESTEE BASED ON RACE AND GENDER. DUE TO THE INHERENT CONSTITUTIONAL VIOLATION, THE INTOXILUYZER 5000 EN SHOULD NOT BE USED IN THE STATE.
Article I, Section 20 of the Connecticut Constitution states unequivocally:
“No person shall be denied the equal protection of the law no be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. “
Thus, any discrimination based on gender or race violates the constitutional provision, and must be disfavored by the judiciary, the executive and the legislative branches of our State government.
It is important to note that the prohibition of discrimination bans both private and public action. While the contours of the effort on private action have not fully been delineated, the restriction on State action is clearly settled. If the Department of Motor Vehicles – as a state agency – employs a scientific method that discriminates based gender, or race, or both, such action is clearly banned by the State constitution. The testimony in this case clearly demonstrates that the Intoxilyzer 5000 EN does fall within this constitutional proscription.
To be sure, instances of state action that discriminate based on gender and race are few and far between. The judiciary has encountered this issue most often in the context of jury selection in criminal trials. In such a forum, the State, represented by the State’s Attorney, is precluded from using a peremptory challenge on gender and racial grounds. Such action violates not only the Federal Constitution, Batson v Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L Ed 2cd 69(1986) J.E.B. v Alabama, ex rel T.B, 511 U.S. 127, 114 S. Ct 1419, 128 L Ed 2d 89 (1994) but the State Constitution as well.
This constitutional prohibition is grounded on the guarantee of equal protection of the laws for the venireman. It also implicates the spectre of State discriminatory action which is clearly prohibited since” the perceived fairness of the judicial system as a whole”. State v. Gonzalez 206 Conn. 391, 394 (1988) is of paramount importance. Where the State employs such discriminatory tactics, not only is the venire man the victim of discrimination, but also the judicial system as a whole is compromised. In order to forestall any State discriminatory action, a discriminatory claim can be raised not only by the venireman directly afflicted, but also by a party to the action even if that party does not fit the profile that invokes the discrimination. Powers v Ohio 499 U.S. 400, 111 S. Ct 1364, 113 L. Ed 2d 411 (1991)(White jurors can claim Batson error even though black jurors were the ones improperly excluded.) In light of this holding, Petitioners Pcolka, Stash, and Makela can assert a constitutional claim that would strictly apply to Co-Plaintiff Carole Peck as a female.
The record in this case clearly demonstrates the gender and racial bias inherent in Intoxilyzer 5000 EN. Gender bias arises from the uncontroverted fact that females have a smaller partition ratio than males (Exhibit 17). A smaller partition ratio causes a higher breath alcohol reading (Exhibit 17). A higher breath alcohol concentration is guaranteed by a factor of at least 5.6 % (T2 p 43).
In addition, pre-menstrual or menstrual increases in body temperature also have a distorting effect on a true breath reading by a factor of 8.6% for every 1.8 degrees Fahrenheit of elevated temperature. (Exhibit 19) Such percentage arbitrarily increases the breath alcohol reading to the prejudice of the female arrestee.
Moreover, the issue of racial bias rises to the fore in the use of the Intoxilyzer 5000. Dr. Hlastala opined that the distorting effect based on race was 3%. (T2B, p37) While at first sight this might appear to be de minimis, State should not countenance racial discrimination in any degree whatsoever. If the margin of error of the machine is 3%, one can readily see that the African American’s inflation factor of 3% can be offset by that same margin of error of 3%. As a result, the Caucasion arrestee maintains a claim of 3% margin of error while the African American arrestee loses that claim entirely. Such is the direct effect of the racial bias of the Intoxilyzer 500 EN.
While these proceedings do not address the specific question of gender or racial bias, the evidence demonstrates that these biases are scientifically well founded. As a result, they are pertinent to the Court’s arguing and should be considered.