September 28, 2023
How many drinks does it take before your blood alcohol content reaches .08 and you cannot legally drive? If you think you have a definite answer, chances are pretty good that you’re wrong.
Why? Because blood alcohol content (BAC) is determined by factors including the food in your stomach, your weight, sex, and how quickly you consumed the alcohol in question.
The only way to really prove a driver’s exact BAC is a breathalyzer test. That’s why breath and blood tests are often used as the central concrete proof in DUI cases.
Well, it turns out that not even those tests are necessarily all they’re made out to be. At least not all the time. In fact, if you were subjected to a breathalyzer test in Colorado in the past three years, there’s a decent chance you may have received inaccurate results. If those results led to a conviction, you may want to call your lawyer as soon as possible.
What Happened to Breathalyzer Results from the Past Three Years?
Before breathalyzers are used to measure a driver’s blood alcohol content and potentially put them behind bars, they need to be tested and certified by professionals at the Colorado Department of Public Health and Environment.
Over 165 Colorado law enforcement agencies use the Intoxilyzer 9000. In 2013, Mike Barnhill was one of the technicians employed by the state to set up and certify each breathalyzer. Recently, though, Barnhill came forward to news sources to say that hundreds of the Intoxilyzer 9000 machines were improperly certified.
In 2013, the Colorado Department of Public Health and Environment was experiencing immense pressure to get the breathalyzers certified and out to law enforcement agencies. Rather than take the time to inspect each one, the state brought in professionals who worked for Intoxilyzer 9000’s manufacturer, including a lawyer, marketing specialist, and department intern.
Here’s where things get really bad. According to Barnhill, professionals in charge of the state’s alcohol-testing program told everyone to use Barnhill’s passcode and sign his name on forms that certified the Intoxilyzer 9000. Once the documents were forged, the machines were sent out to law enforcement agencies throughout the state.
Barnhill is not the only employee to notice that his signature has been forged. In late 2015, defense lawyers realized that breathalyzers were being certified and signed by former laboratory director Laura Gillim-Ross.
Let’s take a second to say that again. Gillim-Ross was no longer an employee, but her signature was still being used to certify breathalyzers. In fact, her signature has appeared so many times that she was issued a subpoena recently to testify about her signature, as it appeared on numerous DUI cases throughout the state.
Recently, the governor’s legal counsel denied claims of misconduct, saying that the department went through an internal investigation, and that an independent investigation is not necessary. Interestingly, though, Mike Barnhill told reporters that he had not been contacted about an internal investigation, even though his (forged) signature was a central part of the alleged misconduct.
What Should You Do Next?
This case is still developing, but if you think it may have had an effect on your DUI charge or conviction, it’s time to pick up the phone.
Lawyers in Colorado have already begun to use the possibly inaccurate results from Intoxilyzer 9000s in order to get their clients’ cases dismissed. Charges in over 30 cases in Weld County have been dismissed after lawyers showed that the Intoxilyzer 9000 yielded inaccurately high BAC levels. Their clients faced penalties like suspended licenses, heavy fines, and even jail time – all because employees forged signatures and rushed to send out faulty breathalyzers.
It doesn’t stop there, either. If you were convicted of driving under the influence in the past three years and an Intoxilyzer 9000 was used in your case, you may be able to appeal your case. Now, an appeal isn’t a guarantee. The court won’t look at the actual evidence used to convict you, but rather whether or not the court made any errors during your trial.
Still, by presenting proof that the Intoxilyzer 9000 results were improperly submitted as evidence, you have a chance at a reversed decision. Talk to a Colorado defense lawyer to learn more about appeals and the possible outcome for your specific case.
As for future cases, as you are reviewing the facts with your lawyer, ask about the breathalyzer used in your case. When was it certified? What evidence can you gather related to the certification of the instrument?
While the forged signatures make this case news-worthy, faulty breathalyzers are not uncommon in DUI cases. If you have been charged with DUI, consider looking into the breathalyzer used, and any factors that could have altered your BAC results (medications taken before blowing, how the officer handled the instrument, and so on). A thorough, critical look at your case is the best way to gather evidence to defend yourself.
About the Author:
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.