JACKSON - A north Mississippi judge has raised questions about the use of a new automated Intoxilyzer, and those questions could derail plans to have the machines in use statewide for DUI enforcement by the Fourth of July weekend.
In the past, the holiday has been a peak time for ticketing drunk drivers.
Law enforcement officers in Mississippi and Florida are being trained on the new Intoxilyzer model. It is being used in at least three states: Arizona, Utah and Ohio. It is manufactured by CMI Inc. of Owensboro, Ky.
In a May 11 order, Judge Pro Tem Jay Westfaul of Oxford, who is presiding over a DUI case in Batesville Municipal Court, questioned whether use of the Intoxilyzer 8000 machines violates the due process rights of people facing the prospect of a drunken driving citation.
Westfaul also questioned whether current state DUI laws require use of the older Intoxilyzer 5000, which the newer machines are to replace.
Westfaul invited the attorney general's office to submit arguments on the case before he rules.
"After we have completed our research, we will offer the court our legal expertise on this matter," said Assistant Attorney General Jacob Ray.
Westfaul said he would rule in 30-45 days on the case. His ruling could determine if the law enforcement agencies can use the new machines, said Batesville city prosecutor Parker Still.
The Mississippi Department of Public Safety bought 250 of the machines with a federal grant to replace the older, larger, DUI testing devices. The new machines cost about $8,000 each.
Highway Patrol and local law enforcement officers have been taking training since last year.
The Mississippi DPS wants the new machines in use statewide by July 1.
Laura Barfield, alcohol testing program manager for the Florida Department of Law Enforcement, said the Intoxilyzer 8000 is not being used yet in actual DUI situations. She said testing has been concluded and law enforcement officers are being trained on the 8000s. She said Florida hopes to have the machines in use by this summer.
"It provided accurate and reliable results on all those evaluations. It's good science," Barfield said.
Barfield said Florida law requires two breath samples, even on the old technology. She said the second test is used to corroborate the first.
The new hand-held portable testing machine looks like an oversized gray lunchbox. Officers can swipe a driver's license and their own identification, downloading information on the suspect and the officer. The older, heavier machines had to be carted around in vans.
The new machine requires a DUI suspect to blow twice, and device records the lowest reading and then prints out a report, Mississippi public safety officials have said.
That is where the Batesville case comes in.
Albert G. Barnett was arrested April 3 after a one-vehicle accident in Batesville.
"The officer brought him in and had him blow once into the machine," Still said. "When he was asked to blow again, he refused. He didn't blow twice as required (for the machine to register).
"There's nothing to say he blew even the once, except for the officer's testimony," Still said.
Barnett was cited for refusal to take a DUI test.
Defense attorney Tom Womble said the officer didn't explain to Barnett that the machine required two separate samples to complete one test.
"He came in and gave a test. Then they said, 'Now I need you go give another one.' This guy is an educated man and he said no," Womble said. "He was charged with refusal when he had been completely compliant with everything the officer requested."
Womble said state law is written to require one breath sample.
There is no paper trail with 8000s unless the defendant blows twice, Still said. Still said state law refers to breath tests and would cover the requirements of the 8000s.
Westfaul also cited concerns with paperwork.
With the older machines, the arresting officer filled out the paperwork as the test proceeded, writing down what was explained to the DUI suspect and the test results.
The Intoxilyzer 8000 has a printer and all the forms needed.
"When you're through running a good test with the 5000 you end up with between 20 and 30 minutes of paperwork," said Highway Patrol Staff Sgt. Roger Blackmon.
"When you get through with the test (on the 8000) in approximately 10 minutes the instrument prints all the forms you need."
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