Breathalyzer fraud allegations could derail Summit County DUI cases
March 21, 2017
Dozens of local DUI cases could be derailed by revelations first reported by the Denver Post last week that annual certifications for Breathalyzers statewide were being forged by state regulators.
Former employees of the Colorado Department of Public Health and Environment — the agency that inspects and certifies the Intoxilyzer 9000 machines used statewide — said lab documents which certify the reading the machines produce is correct is signed by an employee who left the department in 2015.
Those certificates are the only proof during trials that the machines are accurate. The phony signatures indicate regulators may not have been adequately checking the 200 machines across the state and could cast doubt on the accuracy of readings used in thousands of cases.
In an affidavit, the former employee said she didn't authorize the use of her signature, nor did she have any continued involvement with Breathalyzer testing since leaving the agency.
“In large part, and I think probably like the rest of the DAs in the state, we are taking a ‘wait and see’ approach.”Michael RourkeDistrict attorney, Weld County
Defense attorneys across the state have seized upon the revelations as a possible strategy for suppressing Breathalyzer evidence in court or even having cases thrown out, potentially imperiling thousands of them.
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District Attorney Bruce Brown estimated dozens of active cases in Summit County could be affected.
"At this point, the only issue is the validity of these signatures," he said. "The process was flawed, but to extrapolate from that and say it was anything more than a process error is incorrect."
The Denver Post initially reported a claim by a Larimer County attorney that 33 Weld County DUI cases have been thrown out because of wrongly calibrated machines.
Weld County District Attorney Michael Rourke said those cases were from a 2013 incident with a single machine which was quickly corrected. Only two cases were dismissed in connection to that, he said, and he did not know how the Larimer attorney arrived at such a higher number.
The attorney could not be immediately reached for comment.
So far, several motions to dismiss or suppress evidence have been filed in active Summit County DUI cases. Whether or not those are successful is entirely up to the discretion of local judges, none of who have yet ruled on them.
"Once those rulings are entered there will be an understanding of how local courts will be treating them," Brown said.
That is largely the case statewide, although at least one motion to suppress evidence based on the certifications has so far been rejected by a Weld County judge, Rourke said.
"In large part, and I think probably like the rest of the DAs in the state, we are taking a 'wait and see' approach," he said.
Defense attorneys have recently adapted their strategies to the new revelations, local defense attorney Sanam Mehrnia said. Typically, that means arguing BAC evidence is inadmissible given the fraudulent certifications.
Blood alcohol readings aren't the only evidence presented in DUI trials but are the most convincing to juries, Mehrnia said.
Since trade secret rules protecting the company that manufactures the machines prevent the defense from having them inspected by a third party, CDPHE provided the only assurance readings were accurate.
"The defense has no access to this black box; we rely on CDPHE to do their job," Mehrnia said. "I don't have access to an engineer who could inspect it and say, 'This is what's wrong with the machine.'"
In addition to BAC readings, officer testimony or statements made by the suspect are often used as evidence and juries will sometimes convict defendants without knowing BAC reading.
The governor's office and CDPHE have both said an internal investigation into the allegations turned up no evidence of misconduct.
The health department has stood by the accuracy of the machines and Brown said he has no reason to believe they aren't accurate.
"We don't like to litigate issues of form, we like to litigate issues of substance," he said. "To have to engage in this is certainly a disappointment, but it shouldn't create a gift for the defense."
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