DUI Intoxilyzer 9000 tests called into question
March 16, 2017
Steamboat Springs — Local defense attorneys now have potential extra ammo when they try to convince juries that their clients are not guilty of DUI.
The Colorado Criminal Defense Bar has called into question the legitimacy of Intoxilyzer 9000 machines, which are used to measure alcohol in the breath of DUI suspects, saying it could impact thousands of cases in Colorado.
"We want these tests to be accurate, and if they're accurate, and our client is convicted, we can live with that," Colorado Criminal Defense Bar representative Jay Tiftickjian said. "If they're not accurate, it's a travesty."
At question is how the breath test machines were calibrated and certified.
The defense bar wrote a letter to Gov. John Hickenlooper asking him to order an independent investigation.
The Colorado Department of Public Health and Environment is responsible for certifying the machines.
According to the defense bar, former CDPHE technician Michael Barnhill in October alerted the Attorney General's Office that his signature was forged to certify many of the machines.
"Mr. Barnhill asserts that Jeffrey Groff, who oversees the certification and maintenance of these devices, used temporary and inexperienced employees to test the machines and instructed these employees to forge Barnhill's identification to do the work and to use Barnhill's signature on documents to certify and place these devices into use," the letter to Hickenlooper states. "This is the same year, 2013, that you had to suspend the CDPHE blood testing laboratory for sample mismanagement in driving under the influence cases."
The Denver Post this week reported that Hickenlooper would not order an independent investigation.
"We believe that an independent investigation is not needed at this time, but if new facts emerge, we can always reconsider," Hickenlooper's chief legal counsel, Jacki Cooper-Melmed, told the Post.
Steamboat Springs attorneys are trying to learn what all this could mean for their DUI cases.
"It's a big deal," Kris Hammond said. "It would be like if you have a radar speeding case, and the guy that tests the radar speeding gun didn't know what he's doing."
Hammond and Larry Combs each have cases in which a client's Intoxilyzer 9000 breath test results are certified with the signature of Dr. Laura Gillim-Ross. She left CDPHE July 31, 2015.
As the laboratory services division director, Gillim-Ross did not directly calibrate and certify the machines. Other staff members did the work.
"Although Dr. Gillim-Ross's signature appears on the current certificate, the certificate still complies with the CDPHE rules and regulations," the agency wrote in a January memorandum.
Attorneys say a jury will ultimately decide whether the certifications and test results are valid.
"You always look for irregularities or errors or issues with the breath test," Combs said. "We have some untrained technicians allegedly maintaining these devices."
Assistant District Attorney Matt Karzen said he believes the signature problem has been corrected.
"I don't anticipate any substantive evidentiary problems, but the details need to be confirmed before any decisions are made," Karzen said.
Hammond said if someone wanted to dispute an old DUI conviction, the matter would likely have to be taken up with an appeal.