A couple of years ago I attended the Indiana University Borkenstein Course. This is a course that Utah Breath Test technicians are required to take to qualify for their job as technicians. The taxpayer spends a lot of money on these people to take this course. The course is taught by the top scientists in the country and the world. For example, AW Jones from Sweden is probably considered as the worldwide expert on breath testing. Dr. Kurt Dubowski is probably considered the leading expert on breath testing in the nation.

    All of the scientists and experts that taught at the program taught one common theme for forensic breath testing: Quality Assurance is the most important aspect of forensic breath testing. Each expert emphasized that any breath test program should employ duplicate breath testing to ensure an accurate result. The Utah Department of Public Safety chooses to ignore the quality assurance safeguards of duplicate breath testing. I have heard the excuses that it would cost too much to "we don’t have to and we don’t care." A fellow National College for DUI Defense member posted his research on states that require duplicate testing and those that don’t. http://www.wvdui.com/StateBreathMachines.asp

• The interesting thing is that 27 states reported duplicate breath test requirements. 18 states still employ single breath test requirements.

     If it is important to ensure that tests are accurate, that innocent people are not convicted, and to ensure that justice is served, why doesn’t Utah step up to the plate. It is not expensive, it is just a software issue. The state has recently purchased brand new Intoxilyzer 8000 machines. Those machines are designed to do duplicate testing. Yet, duplicate testing is still not employed. It seems to me that if the state employed a system to ensure accurate results, they may have to employ the idea that maybe the officer made a mistake in making the arrest.

STATE

BLOWS

COMMENTS

AK

1

Datamaster CDM. 15 minute observation period before test.

AL

2

Drager Alcotest 7110. Both blows must be within .02 of each other and must come within one three minute breath test sequence. 20 minute deprivation period before test.

AR

1*

Datamaster. Law allows 2 blows, 1 is the norm. Second blow is entirely at officer’s discretion and lower result is the one required to be reported.

AZ

2

Intoxilyzer 5000 (64-, 66-, 68-), 8000. Two blows no less than 5 minutes, no greater than 10 minutes apart, within .02 of each other.

CA

2

Multiple machines – Intoxilyzer 5000, 8000; Intoximeters EC/IR; Drager ePAS, 7410; Datamaster. Two blows within .02 of each other or a third test is required – no time limit.

CO

2

Intoxilyzer 5000EN. Breath sample captured for independent retest.

CT

2

Intoxilyzer 5000 (68, EN). Each blow preceded by a 15 minute observation period, with both blows being thirty minutes apart.

DC

DE

FL

2

Intoxilyzer 5000, 8000. Unlimited time and number of tests to get two within .02 of each other. 20 minute observation period before test by administrative regulation.

GA

2*

Intoxilyzer 5000 (68-). Two blows required by statute and must be within .02 of each other; if one adequate sample provided, no refusal penalty for refusing second blow and state will proceed on basis of one blow. No prescribed time limits in which to obtain both samples, but machine’s software takes two minutes between tests. 20 minute observation period set forth in machine manual, but caselaw opines that any variance goes only to weight, not admissibility.

HI

1

Intoxilyzer 5000 (EN); Intoxilyzer 8000 in approval process. 15 minute observation period before test.

IA

1

Datamaster CDM. 15 minute observation period before test.

ID

2

Intoxilyzer 5000 (66-, 68-). Blows must be within .02 of each other or a third blow is required. Blows must occur within two minutes following a 15 minute observation period.

IL

1

Intoxilyzer 5000 (64-, 66-); Intoximeter EC/IR (EC/IR II coming soon), RBT IV. 20 minute observation period before test.

IN

1

BAC Datamaster. 20 minute observation period before test. Arresting officer may elect blood, breath, or urine with as many tests of each as he chooses and failure to submit to any deemed a refusal. No right to independent test.

KS

1

Intoxilyzer 5000 (66- ) currently in use as well as Intoxilyzer 8000. 8000 is in early stages of a two year phase-in to replace the 5000. 20 minute observation prior to test.

KY

1

Intoxilyzer 5000EN. 20 minute observation period before test.

LA

Intoxilyzer 5000EN.

MA

2

Draeger 7110 MK III-C. 15 minute observation/deprivation period before test. No statutory time limit for samples to be provided but machine cycle normally 2 – 3 minutes. Samples must be within .02 of each other.

MD

2

Intoximeter EC/IR. Blows must be within .02 of each other or a 3rd is required. If 3rd blow does not achieve .02 margin, all tests deemed invalid. Machine software requires blows to occur within 3 minutes of start of test sequence. 20 minute observation period before testing.

ME

2

Intoxilyzer 5000 EN. Four attempts permitted to get two results within .02 of one another.

MI

2*

Datamaster. Regulations require two blows, 2nd coming at least two minutes after first, but courts have opined only one is necessary for “validity” so two blows not commonly seen. 15 minute observation period prior to 1st test, and 1st result must come within 2 minutes after initiation of test sequence.

MN

2

Intoxilyzer 5000 (68-). 2 consecutive samples, 4 minutes for each sample to be obtained and samples must be within .02 of each other.

MO

2*

Intoxilyzer 5000, Datamaster. Officer may require 2 breath samples, but common practice is for 1. Implied Consent advisement does not inform that two tests are required, nor does it advise that if two are requested and only one is provided, suspension for refusal will occur. No agreement is required between the two tests if two are administered. 15 minute observation period before test.

MS

2

Intoxilyzer 8000

MT

1

Intoxilyzer 5000 (68-). 15 minute observation period before test.

NC

2

Intoxilyzer 5000 (66-, 68-). Blows must be within .02 of each other. 15 minute observation period before test.

ND

NE

1

Datamaster CDM, Intoximeters 3000 also approved.

NH

2

Intoxilyzer 5000EN. Both blows must be within .02 of each other. If not, additional tests occur until two within .02 are achieved. Breath sample captured for independent retest. 20 minute observation period before test.

NJ

2

Breathalyzer 900, 900A – 2 blows 6 – 15 minutes apart. Alcotest 7110 MK IIIC – 2 tests at least 2 minutes apart. 20 minute observation period by custom, not statute or regulation.

NM

NV

2

Intoxilyzer 5000EN. Samples must be within .02 of each other or a 3rd sample is obtained. If that does not fall within limits, blood draw authorized. If suspect fails to provide additional samples, 1st may be used, but forced blood draw is then permissible. No prescribed time limit to obtain samples, but 3rd and 4th must be within 2 hours for per se charge.

NY

1

Datamaster, Draeger 7110. 15 minute observation period before test by administrative rule, but 20 minute period typically used across entire state.

OH

1

Datamaster, Datamaster CDM, Intoxilyzer 5000 (66-, 68-, EN), 8000. 20 minute observation period before test.

OK

2

Intoxilyzer 5000 (66-, EN). Both blows must be within .03 of each other and lowest value is used. All results go to 2 decimal points only. 15 minute observation period before test.

OR

1*

Intoxilyzer 5000 (68-). 15 minute observation period prior to test. *Intoxilyzer 8000 being implemented and will require two blows, two minutes apart with samples being within 10% of one another.

PA

2

Intoxilyzer 5000 (all models), BAC Datamaster. 20 minute observation period before test. No specified time between breath samples. Breath samples must be within .02 of each other. Emerging movement towards blood testing.

RI

2

Intoxilyzer 5000. Both blows must be 30 minutes apart.

SC

1

Datamaster. Entire breath test process must be videotaped, including implied consent warning and 20 minute observation period prior to test.

SD

TN

1

Intoximeters EC/IR and EC/IR II and, to a limited extent, Intoxilyzer 1400

TX

2

Intoxilyzer 5000 EN. 15 minute observation/deprivation period before test. Breath samples must be given within three minutes of each other and must be within .02 of each other.

UT

1

Intoxilyzer 5000, 8000. 15 minute observation period before test.

VA

2

Intoxilyzer 5000. Both blows within three minutes of each other based on machine software, though no legal requirement for time of obtaining samples. Blows must be within .02 of each other or a third blow is required. 20 minute observation period before test.

VT

1

Datamaster. 15 minute observation period before the test is a byproduct of both common law and regulation.

WA

2

Datamaster and Datamaster CDM

WI

2

Intoximeters EC/IR. Both blows must be within .02 of each other. 20 minute observation period prior to testing.

WV

1

Intoximeters EC/IR II. 20 minute observation period prior to testing.

WY

2

Intoximeters EC/IR. Three tries to get two blows within .02 of each other. 15 minute observation period prior to testing.