Re: Rumor (County Prosecutor in Sumner County, KS, Figured out Intoxilyzer’s Slope Detector Doesn’t Work)

The Intoxilyzer 8000 has a real problem telling the difference between tiny amounts of alcohol in the mouth (often called “residual alcohol”) and the alcohol found in the breath from deep in the lungs. Only the latter can accurately measure how impaired a person might be. Mouth alcohol can cause a completely sober person to blow a .000 in one breath and then a few minute later show a breath alcohol concentration of .16 which is double the legal limit.

We know this because the person that maintained the Intoxilyzer 8000 instruments in Hillsborough County admitted to a problem in an “internal memo.” The internal memo explained that after swishing a tiny amount of alcohol in his mouth and then blowing in the instrument, the Intoxilyzer 8000 failed to indicate the presence of mouth alcohol. Instead, the instrument showed that the inspector has a breath alcohol concentration of double the legal limit even though he was completely sober.

Read more about Mouth Alcohol Problems on the Intoxilyzer 8000s in Hillsborough County.

These problems can be found in other states as well. Consider the e-mails from officials in Kansas. The internal e-mails showed that “rumors” were running rampant that the Intoxilyzer 8000 was unable to tell the difference between someone who was really intoxicated and someone who swished a tiny amount of alcohol in his mouth.

Apparently the county attorney in Sumner County, Kansas, sat in on a couple of demonstrations that didn’t go as planned when different Intoxilyzer 8000 machines on different dates showed a high BrAC result even though a sober person was blowing into the instrument. The head of the Kansas Alcohol Breath Testing Program was concerned that even the prosecutors were spreading rumors the instruments didn’t work. Oops.

When prosecutors know of exculpatory evidence they must turn it over to the defense. Of course, the fact that the defense was able to use that evidence meant that many cases were not able to be prosecuted. Shortly thereafter, the County Attorney, Evan Watson, announced that his office wouldn’t prosecute certain DUI cases using breath test results from the Intoxilyzer 8000.

MADD got mad. The prosecutor lost the next election in November of 2012. Kerwin L. Spencer received 2,133 votes. Evan C. Watson received only 763 votes. Kerwin Spencer decided to run for County Attorney of Sumner County, KS, for the following reason: “[d]ue to dissatisfaction with the current county attorney, I had police officers, attorneys, probation officers, and others familiar with the job contact me and urge me to run for the job.” The moral of the story is do NOT conduct any demonstration of the Intoxilyzer 8000 when an ethical prosecutor is in the room.

Special thanks to Stephen Daniels with DUI Undo Consultants, LLC, for sharing this information with me. I asked him if he was aware of any other instances of government types doing the mouth alcohol test and getting BrAC readings. It took him about two minutes to send over this funny e-mail that makes the point.

I cut and paste the e-mails below. Read the e-mails from the bottom up.

______________________________________________

Subject: RE: rumor

Date: February 24, 2011 3:57:09 PM EST

To: Robert Istas <ristas@KHP.KS.GOV>

Did you try to explain it to them or was he just trying to find ways of invalidating the instrument?

______________________________________________

From: Robert Istas [mailto:ristas@KHP.KS.GOV]
Sent: Thursday, February 24, 2011 2:56 PM
To: Christine Houston
Cc: ‘Bartkoski, Jeffrey’; ‘cmccluskey@augustadps.org’; ‘Karen Wittman’
Subject: RE: rumor

I AGREE WITH YOU.  JUST UNFORTUNATELY, IT HAPPENED WITH THE C.A. RIGHT THERE WATCHING, ETC.

______________________________________________

From: Christine Houston [CHouston@kdheks.gov]
Sent: Thursday, February 24, 2011 2:52 PM
To: Robert Istas
Cc: ‘Bartkoski, Jeffrey’; ‘cmccluskey@augustadps.org’; ‘Karen Wittman’
Subject: RE: rumor

You have to be very clear that they are to spray the breath spray just prior to blowing into the instrument otherwise it can saturate the lung and create false readings.  I have never had an instrument not give me mouth alcohol unless I did not follow the protocol.  They need to spray just prior to blowing and blow longer than when they see numbers appear on the display because the instrument has to have a certain number of points to determine the mouth alcohol spike.  That is why we wait 20 minutes and if we believe they brought up stomach contents then we restart the 20 minute deprivation period.

The attorneys down in Sumner are saying the instrument does not work.  I think it is new operators not conducting the test correctly.

______________________________________________

From: Robert Istas [mailto:ristas@KHP.KS.GOV]
Sent: Thursday, February 24, 2011 2:41 PM
To: Christine Houston; ‘Bartkoski, Jeffrey’; ‘cmccluskey@augustadps.org’
Cc: Dave Weed
Subject: RE: rumor

YES MAAM,

WHEN WE DID THE CLASS IN SUMNER COUNTY, ONE OF THE DAYS, THE COUNTY ATTY AND ASSISTANT SAT IN.  DURING THE AFTERNOON PRACTICAL, WE HAD THE COUNTY ATTY WATCHING THE DEPUTIES ACTUALLY RUN THE TEST.  WHEN IT WAS TIME FOR THE MARILYN BREATH TEST, THE INTOX ACTUALLY READ A READING OF .049.  IT DID IT TWICE THAT WEEK.  I HAVE TWO TESTS, ONE SHOWING .049 (INSTRUMENT 80-002210) AND ANOTHER SHOWING .083 (INSTRUMENT 80-002163).  THIS WAS DONE ON TWO DIFFERENT INSTRUMENTS TWO DAYS IN A ROW.

ALSO, DURING THE 02-19-2011 CLASS IN WICHITA, INSTRUMENT 80-002210 AGAIN ACCEPTED A BREATH TEST OF .025 WITH THE LISTERINE IN IT.

I STILL HAVE THE PRINTOUTS IN MY BOOK IF YOU WOULD LIKE THEM.

PLEASE HOLLER WITH ANY OTHER QUESTIONS,

ROB

______________________________________________________

From: Christine Houston [CHouston@kdheks.gov]
Sent: Thursday, February 24, 2011 10:23 AM
To: ‘Bartkoski, Jeffrey’; ‘cmccluskey@augustadps.org’; Robert Istas
Subject: rumor

Guys, was there some issue with the instruments during training?  There is a rumor in Sumner County that the instrument’s slope detector does not work and this is coming from the prosecutor’s office.  Apparently, this occurred during the class with the county attorney in there.  Can someone explain?  Thanks.

Christine Houston

Breath Alcohol Program

785-230-1727

4 Comments

  1. Marguerite "Peggy" Hess
    Posted January 12, 2013 at 07:01 | Permalink | Reply

    May 19,2012 I was arrested for DUI.

    After the road test at 9:30 pm and two breath tests on the intoxilizor 8000 at 10:30 pm I was arrested.I had a .140 and .127 read out.

    During the questioning period I twice told him I suffered from GERD.

    I was very belligerent because I strongly felt that the Sherriff was setting me up to fail with his directions and I told him so.
    I was clearly arrested for my attitude and not because I was drunk.

    The arresting officer and his woman back up lied under oath saying I had a strong odor of alcohal. This is one of their common buzz phrase amoung other things.

    I have never had a strong odor of alcohal on me in my life and I am 60 years old!

    With the help of a great defense team consisting of RJ and Jimmy Ferraro from Ferraro law offices in Stuart Florida, toxicologist Dr. Joe Citron from Atlanta Georgia and DUI UNDO specialist Stephen Daniels from Sarasota Florida a NOT GUILTY verdict from a six person Jury trial was entered into the courts on Wednesday January 9,2012 at 6:15 pm.

    I should have never been arrested in the first place. 13 people saw the arresting video prior to my trial and unanamously agreed I was mad and arrogant but NOT GUILTY. Two strangers who knew nothing of me also agrred that I was not guilty.
    SIX jurors saw the same video and evidance and unanamously concluded I was NOT GUILTY.

    Why did the prosecutor and his bosses not see the same thing?

    If it is not about the money…. then it is all about the money.

    Our system is BROKEN and is set up to make all FAIL.

    Where is the justice?

    It is found in law offices like yours and like Ferraro and firm!

  2. Posted January 13, 2013 at 08:58 | Permalink | Reply

    Excellent. Maybe we are having a renaissance in living by the truth again.

  3. Everyman
    Posted January 18, 2013 at 00:58 | Permalink | Reply

    Nice to see the Kansas shenanigans getting some exposure in other parts of the country. This is just the tip of the iceberg.
    Isn’t Christine Houston a gas! If you think this is funny…you should hear her give sworn testimony. The truth is not her friend, nor MADD’s.
    Notice the second email in the string where the operator tells her, “I STILL HAVE THE PRINTOUTS IN MY BOOK IF YOU WOULD LIKE THEM.” Houston responded to this in a different email string, at 2:57 pm by saying, “Why are you still keeping the printouts? Yes, I would like them.”
    Of course she wanted the printouts…to DESTROY them. A suitably corrupt bureaucrat cannot have that kind of exculpatory evidence floating around. It might give productive people the impression that her machines are fallible.

  4. Everyman
    Posted January 18, 2013 at 01:03 | Permalink | Reply

    I almost forgot, congratulations Peggy!

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