Just because someone is accused of drunken driving because of a failed Breathalyzer test doesn’t mean it’s a slam-dunk case, say several Galveston County legal experts who call into question the effectiveness of the devices.
“There are some major issues with it,” said Jonathan Zendeh Del, a Galveston attorney who specializes in alcohol-related cases. “The test just uses so many assumptions — the height, the weight, the temperature, metabolic rate and blood content of a suspect.”
Breathalyzers and their accuracy have increasingly come under scrutiny across the country in recent months. One common model, the Alcotest 9510, made headlines when researchers in Washington found problems with the source code might cause inaccuracies, according to news reports.
Although Galveston County uses a different model of Breathalyzer, the Intoxylizer 9000, the results are equally questionable at times, area legal experts agreed.
“Juries are always going to question it,” Zendeh Del said. “There’s almost always video and juries know what a drunk person looks like. If a person looks fine on video and gets a result of .25, there’s some kind of disconnect there. The two things don’t match.”
The county upgraded to the new Intoxylizer model in 2016 after using the 5000-model for about 30 years, Zendeh Del said.
Meanwhile, officials with the Galveston County District Attorney’s Office said Breathalyzer results were increasingly less a focus in DWI-related prosecutions.
“Now, with the process of warrants for blood tests, in DWI cases you’re seeing more of that,” First Assistant District Attorney Kevin Petroff said.
Law enforcement agencies in the county have increasingly come to rely on a new program called the Safety Through Rapid Investigation of Key Evidence, or STRIKE, program, which enables police to process DWI claims more efficiently, officials said.
When someone refuses a Breathalyzer test, police officers using the STRIKE program telecommunicate with a judge via internet at the crime scene or traffic stop and submit sworn affidavits to obtain a blood sample, officials said.
Officers then take the suspect to a medical facility where a blood sample can be obtained, officials said.
Breathalyzers are becoming increasingly irrelevant because of the program, said Mark Diaz, a Galveston defense attorney.
Despite the preference of blood samples to Breathalyzer results, the devices can still be cause for concern in some cases, said Greg Russell, another area defense attorney.
“There have been some occasions were the results have raised my eyebrows,” Russell said. “They normally take two samples and sometimes they will be far apart. Say, for instance, someone blows a .12 and then a .18. That’s .06 apart. The results should be closer.”
The firing of a League City Police Department employee who handled DWI Breathalyzer tests for more than six years in 2016 also calls into question the results of the tests, Russell said.
Marianela Martinez was fired from the department in June 2016, leading defense attorneys to call into question many of the results she oversaw, law experts said.
Martinez was responsible for managing breath alcohol instruments for nine law enforcement agencies. Martinez’s primary responsibilities included the maintenance, testing and integrity of documents associated with these instruments, according to documents from the League City Police Department.
“We still have cases pending in our office that happened during that,” Zendeh Del said.
Martinez oversaw Breathalyzer examinations while the state was using the Intoxylizer 5000, but the new model Intoxylizer 9000 still has many issues, Zendeh Del said.
Problems stemming from Breathalyzer tests are enough to become part of many legal defenses, Zendeh Del said.
“I don’t want to call it a junk science, but I don’t agree with it,” he said. “Blood samples are a lot more accurate.”