Official Breathalyzer Test Machine In Arizona?


Arizona uses the Intoxilyzer 8000. The manufacturer is CMI. The Intoxilyzer 8000 has been used for about fifteen years now, going back to the early 2000’s. Any Arizona law enforcement agency which employs breath testing uses the Intoxilyzer 8000. These devices are maintained by the Arizona Department of Public Safety.  The operational standards for use of the Intoxilyzer 8000 by law are set by the The Arizona Department of Public Safety.  At trial I like to point out that since a police agency, the Arizona Department of Public Safety, gets to set the standards for use of the machine, in essence the police get to say set the standards as to how accurately they do their job.  The is no longer an independent agency which sets the standards.  It is like a baseball player alone being able to set the standards as to how good his performance is, regardless of the score of the game.

How Does the Intoxilyzer 8000 Work?

The device used in Arizona is the Intoxilyzer 8000. The state has two ways to get the results admitted into evidence at trial. One is there’s what’s called a statutory method of admissibility of the test results, meaning it using the Arizona statute, 28 A.R.S. §1323. In order to use the statutory method, State would have to follow basically what the protocol used to administer the test as set forth in the Department of Public Safety regulations.

The second way to make sure mouth alcohol is not a problem, and again it’s a part of the protocol, is that the officer has to administer two tests 5 to 10 minutes apart. Keeping in mind that mouth alcohol tends to dissipate fairly quickly, if there’s a mouth alcohol condition present, there would be a large variance between the two tests. A part of the protocol is the two tests that the officer would administer have to agree within a .02, meaning, for example, if the first test was .08%8 %, the second test would have to be at least a .068 % or somewhat closer in order to be a valid test.

Something that can affect the accuracy of the results is mouth alcohol.  If the device was to pick up mouth alcohol, it would produce a very high result and a result that would not be accurate. Mouth alcohol tends to dissipate fairly quickly. There are three safeguards for mouth alcohol. The first, and the first part of the protocol is that they have to make sure the person doesn’t ingest any alcohol 15 minutes prior to taking the breath test. The most common way to do that is to have the person handcuffed. That’s the first thing to make sure mouth alcohol was not a problem. That’s the other requirement. The third requirement is that the two tests have to agree within .02 % or more of each other. If it was a variance more than that; for example, the first test .08%8, second test .048%, that would be too great a variance and so therefore that would be an indication mouth alcohol affected the higher test.

Another foundational requirement is that the device be properly calibrated.  Calibration tests have to be run before and after each time a person takes a test.  With the Intoxilyzer 8000, there’s a cylinder on the side of the machine that contains a gas solution with alcohol in it for calibration. .
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That solution is run through the machine immediately prior to and immediately after the breath test to see how accurately the device is able to read the solution in the cylinder. The solution is supposed to be a .10 % solution. Supposedly the supplier of the cylinder says the solution in the cylinder It has a tolerance of .002%, so the solution in the cylinder could be anywhere from a .098% to .102% and that would be the acceptable range within that cylinder.  I have my doubts about that accuracy because the solution in the cylinder is never independently tested.  When a person is taking test, the officers have to do use the solution in the cylinder to run tow bracketing calibration tests.  Those bracketing calibration test must have the results within the Department of Public Safety mandated accuracy range of .090% to .110%.

The two bracketing tests have to be between a .090% and a .110%. If the backing calibration tests are outside of that accuracy range then the device is not working accurately and it cannot be used to do the breath tests. That’s the first method that can come in, using the statutory procedure of following the regular protocol. Fifteen minute deprivation period. Two calibration tests. Two tests five to 10 minutes apart, and it has to be within a .02 % or more. If the officer does that and the device indicates that that’s what happened, then the tests are administered by statute.

For the second way to have the breath tests admitted in to evidence at trial is to use an expert witness who examines the results an offers their opinion on the accuracy of the results.  This method is known as the Deason Method so called because of the case, Arizona, ex rel. Collins vs. Seidel, Deason, Real Party in Interest,  142 Ariz. 587.  Let’s say there is some screw up in the way the tests were not administered according the Arizona Department of Public Safety standards.  For example, let’s say the person took the firs breath test, but refused the second. The state then could conceivably use a single test even though it wasn’t done in accordance with the Arizona Department of Public Safety standards which mandate two tests, five to ten minutes apart.  At trial the State could have an expert come in and say that the testing procedure is still reliable and accurate the way the officer did it. There’s a little bit more to that however that is how the test results can be admitted into evidence using an expert’s opinion.

If only a single test result is obtained the State must offer the defendant a second sample of his breath to have it independently tested. The most common way to offer a second sample is, and it’s not done anymore; but going back many years, 20 plus years ago, the police were using a different breath testing device which captured a sample of the breath in a little glass tube.   The officer could give that sample in the tube to the defendant for independent testing. The defendant could go have it independently tested. That would be a second sample of the same breath. They don’t do that anymore because it’s too difficult.

Try to use an expert’s opinion to say that even if it’s just a single test it was scientifically reliable test, they would have had to offer the defendant a second sample of the same breath or offer to do a blood test for him or her.

If the police do not offer a second sample, even if the expert says that it’s a reliable test, legally it’s not admissible in court. It’s been years I’ve seen anybody ever try to use the expert method of trying to get the test results in. Virtually every time now when somebody tries to admit the breath test results when the prosecutor does, they use the statutory method of getting the results in.

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