Question: What are the arguments against using the Intoxilyzer 5000?

Benson Varghese: The Intoxilyzer 5000 is the instrument that is used by police departments throughout the state of Texas, and has been approved by the Texas Department of Public Safety to obtain breath specimens from individuals who are suspected of driving while intoxicated. However, the devices that are used in Texas do not retain any samples for future testing. Additionally, the way the instrument works directly affects the reliability of the results that are produced.

First of all, there has to be a 15-minute waiting period before a person provides a sample. During that 15-minute observation period, the officer needs to make sure that person’s not burping, regurgitating or doing anything to bring alcohol back into the mouth, because if there’s alcohol present in the mouth when the person provides the sample, it will clearly make the alcohol reading much higher than it would be otherwise. The downside to that is that an officer standing on the other side of the room, very often entering information into this Intoxillyzer or instrument, is not going to be observing that individual very closely. So unless there’s an audible burp, there might be things happening that the officer doesn’t know about and if it’s not on video or the video is not tracking it, it’s going to be hard to later determine if that was a good test or not.

Additionally, the instrument has to be kept at a certain temperature. There is a container inside the instrument that has a known amount of alcohol in a solution and that has to be maintained at the right temperature and at the right concentration to then compare the known against the unknown. That can be measured regularly, but what happens over time is that the alcohol solution degrades and has to be changed out.

Additionally, the instrument is like any other device: it’s subject to having problems. There are ways to check, remotely and on site, if the instrument is working properly, but those checks have to be done regularly.

On a case that involves a breath test, instead of just looking at the breath test slip generated from that one arrest, what we do in anticipation of a trial is we’ll subpoena the records 30 days before and 30 days after, to get a 60-day spread of every result that the instrument has generated; it will give us a really good idea of problems that may have existed at the time and that could’ve adversely affected the test results.