Thursday, August 4, 2011

The sky is falling! Not.

Last night I ran across a blog post from a criminal defense attorney in North Texas. The post was written in reaction to the Scillitani case that I wrote about on Monday. The article stated that the Texas Department of Public Safety rewrote the regulations that govern breath testing in Texas under cover of night.
Very recently, (and apparently very quietly), the Texas Department of Public Safety relaxed its standards for the instrument certification.  The .02 agreement requirement is gone.  The multiple breath test specimen requirment is gone.  The requirment that the reference sample be maintained at a particular temperature?  Gone. 
The DPS actions immediately raise the question, why?  Why were the above requirements considered so vital to instrument certification for years no longer necessary to ensure a valid and reliable breath sample?   If this is supported by new scientific study that demonstrates the the requirement is not necessary to achieve consistent and valid breath test results, what are they?  Why have they not been publicized?  The technology behind the Intoxilzyer certainly has not changed. As a practical matter, this means that objective observers should have considerably less confidence in the validity and reliablility of the results of the Intoxilyzer 5000 when the standards for instrument certification are quietly stripped away.
That's not exactly true. The regulations (which can be found in 37 Texas Administrative Code, Section 19.4) were last amended in 2006 (Click here for the "old" regulations). No one took out the requirement that the breath test operator note the temperature of the reference solution because that requirement never existed.

Changes were made in the certification process for breath alcohol testing programs in 2006. The regulations were renumbered to make room for definitions.

Nowhere in the "old" regulations will one find a requirement that the two breath samples be within .02 g/210L of each other in order for the test to be valid. That "requirement" comes from the manner in which the machine is programmed to operate. The machine itself will invalidate a test if the two blows are more than .02 g/210L apart (at least if the reported results are more than .02 g/210L apart).

Likewise, there is no requirement that a breath test consist of multiple blows. That, too, has to do with the way in which the Intoxilyzer 5000 is programmed to operate.

I do find it disturbing, however, that, when discussing the requirement that the predicted and actual values of the reference solution be within .01, the regulations contain the phrase "or such limits set by the scientific director."

So, despite the proclamation that the sky is falling as a result of the Scillitani case, that is simply not the case. The issues of multiple blows and .02 test agreement are decided by the type of machine used to test the breath, not by Rule 19.4.

And, since Texas will (at some point) begin using the Intoxilyzer 8000, those questions will one day be moot.

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