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The Intoxilyzer 5000EN and You

  1. The Science Behind the Intoxilyzer 5000EN
  2. Intoxilyzer Science and You
  3. Why the State of Minnesota Uses the Intoxilyzer in DUI Cases
  4. Protecting Your Rights When Faced with the Decision to Take the Test
  5. The Intoxilyzer Source Code: Why is it a Big Deal?
1. The Science Behind the Intoxilyzer 5000EN

In order to understand the science that enables a machine that collects breath to measure the alcohol concentration in a person's body, it's necessary to understand some scientific terminology, first.


Spectroscopy is a science - like biology, which is the science of living organisms, or chemistry, which is the science of chemical compounds and reactions - that covers a very specific topic, namely the infrared region of the electromagnetic spectrum of light. Spectroscopy is the study of the spectra, which is the visible range of light waves - from violet colored waves, with the shortest wave length, to red waves, with the longest wave length.


Infrared refers to the invisible rays that are just beyond the red end of the visible spectrum of light. Infrared waves are longer than red light waves, but shorter than radio waves; so, they're invisible to the eye, even though they're still light waves. A unique property of infrared waves is that they have a heating effect - they're even used in some cooking appliances.


By passing a beam of infrared light over a sample of matter - in the case of the Intoxilyzer, the matter is a breath of air from your lungs - and then measuring how much light comes back compared to how much was sent out, the Intoxilyzer analyzes how much energy was absorbed at each wavelength, and thus what the concentration of alcohol in your body was.


This is because alcohols molecules absorb light consistently at the same certain rate. The other molecules found in the breath we exhale, like water and carbon dioxide, don't do this.


How does the Intoxilyzer know how much light is coming back and how much was absorbed, though? When the Intoxilyzer produces a beam of infrared light, it splits that beam into two beams and passes one through the sample containing your breath, and the other through a "control" - usually a pure form of solution containing no alcohol. The difference between the reports sent back to the detector from the two beams is how the machine calculates your alcohol concentration.


But how can differences between the amounts of light coming back to a detector be translated into a body's alcohol concentration? This is where source code comes in. You may have read about the litigation going on in different state courts regarding the source codes of models of the Intoxilyzer machine like the model 5000EN used in Minnesota. A Minnesota DUI lawyer can explain to you if any of the current source code litigation may apply in your case; and you can read more about the main cases in Minnesota challenging Intoxilyzer results and source code disclosure on Mr. Kans' website, by clicking on the Netland, Shriner and Underdahl article.


Briefly, source code is computer programming language, written by software engineers. It's a series of commands - millions of combinations of commands, which are very rigid, and which tell the machine how to interpret the physical data the machine registers when you blow into it. It seems like a great way to match science with functionality: Infrared spectroscopy measures physical data and a machine then translates that into an alcohol concentration that can be printed out on a piece of paper. There is one big problem, though: The Intoxilyzer, unlike a scientist sitting at a table and looking into a spectroscope to measure the infrared results, doesn't know what it's doing - it just follows computer orders! So, if there is a flaw in the commands somewhere, and that flaw affected your Intoxilyzer results, we have no way of checking the "scientist's" work. Because we can't check the Intoxilyzer's work, it's important to have a Minnesota DUI lawyer evaluate your case to see if your Intoxilyzer results were affected by a potential flaw in the machine and should be challenged.


2. Intoxilyzer Science and You

Even if the Intoxilyzer machine is working perfectly when you blow into it, your Intoxilyzer test results STILL might not be accurate! Characteristics like being female or diabetic can artificially raise Intoxilyzer results.


Lung capacity has a lot to do with the "result" reported by the Intoxilyzer - because remember, it's measuring how much light comes back through a sample of air from your lungs. But alcohol enters the lungs through tiny sacs, which are located in the lower end of the lungs. So, the air that comes from the top of your lungs has a lower alcohol concentration than the air at the bottom of your lungs. The bigger your lungs are, the bigger portion of the 1.1 liters of air required to fill the Intoxilyzer is coming from the "top" of your lungs. The smaller your lungs are, the more you have to dip into the bottom of your lungs to give a breath sample of 1.1 liters.


This means that women, whose lungs are typically smaller than men's lungs, can end up with higher Intoxilyzer test results.


Also, body temperature can affect Intoxilyzer results. This means that women, whose body temperatures can fluctuate during menstruation as much as 7.2 degrees Fahrenheit, can raise their breath test results by up to 25%! This is the difference between blowing a 0.07 - below the legal limit - and blowing a 0.087!


Diabetics can have in their breath a substance known as ketone bodies, which is known as the condition ketosis. Ketone bodies are naturally occurring molecules in all human bodies, but sometimes diabetics have excess quantities of these molecules in their bodies, as do individuals with eating disorders or high fat diets. Ketone bodies absorb light the same way alcohol molecules do. This makes sense because one common ketone is acetone - like the ingredient in nail polish. It is a flammable, colorless liquid solvent and acts chemically like beverage alcohol. Therefore, diabetics can have Intoxilyzer test results that read higher than their breath alcohol concentration.


A Minnesota DUI lawyer can tell you if your Intoxilyzer test results were affected by any of these characteristics.


3. Why the State of Minnesota Uses the Intoxilyzer in DUI Cases

According to the Bureau of Criminal Apprehension (the BCA), there were 35,000 breath tests done in the year 2006. There were only 5,000 blood and urine tests done to determine alcohol concentration in the same year. The turn-around time to get results from blood and urine tests back from the BCA would increase dramatically - to over one month - if suddenly the BCA were faced with 40,000 blood and urine alcohol tests. The time, energy and money involved in a change like that would radically change how DUI cases are managed in Minnesota, which could mean longer wait times and higher fines for you.


The science behind the Intoxilyzer is sound - infrared spectroscopy is a very accurate way to measure the absorption of light of molecules in a sample. It's the application of this science by computer code inside a machine that creates some discrepancies.


Although the computer code may work against you, the state enacted a couple statutes that work in your favor when you're submitting to a breath test.


For example, did you know that statute requires that your Intoxilyzer results be rounded off - not rounded up or down, but off? This means that if you blow a 0.089, your result is a 0.08 - not a 0.09.


Furthermore, did you notice that when you were giving a breath sample, you were asked to do it twice? The state is required by statute to acquire two samples from you, and this is to your benefit because the state is also required by statute to report as your Intoxilyzer test result the LOWER of the two results. So, although it can feel like adding insult to injury to be asked to blow again, remember: The state must report the lower result and this is to protect you.


4. Protecting Your Rights When Faced with the Decision to Take the Test

Although in Minnesota, it is a crime to refuse to take a chemical test if you are under arrest for DUI, you have the right to speak to a Minnesota DUI lawyer BEFORE you are required to take a chemical test.


You also have a constitutional right to have your test results - breath, blood or urine - verified by an independent testing agency. This doesn't mean you have the right to a second type of test at the time of your arrest, but it does mean that you can have the sample you gave during your test tested again! In some situations, this is an important protection of your constitutional rights. A Minnesota DUI lawyer can tell you if your case would benefit from independent testing.


5. The Intoxilyzer Source Code: Why is it a Big Deal?

The source code is the magic link between your breath, the science used by the Intoxilyzer, and the State's evidence against you: Remember, source code is how the Intoxilyzer turns infrared light particles into a number that the prosecution uses as evidence. If there is an inherent flaw in the machine's computer program, then the way the machine applies the science to your breath to generate that number may not be reliable evidence and the state is still using it against you! But, without having a copy of the source code for computer scientists to look at and analyze, there's no real way to know if the code is unflawed, and the results reliable.


That's why source code is a big deal to Minnesota DUI lawyers, and to you. Why does CMI, the company that wrote the source code for the Intoxilyzer 5000EN, not want anyone to see it, though? They claim their competitors would be able to copy it and that would violate their intellectual property rights. Criminal defense attorneys in Washington, Arizona, Florida, Texas, Kentucky, Georgia, Louisiana, Massachusetts, and Minnesota have argued that not disclosing the source code violates a defendant's rights.


DUI law is one of the most complex and quickly changing areas of criminal law. The prosecution relies heavily on the results of Intoxilyzer tests for evidence against individuals charged with DUI. Being able to challenge your Intoxilyzer results can take the wind out of the sails of the State's case against you. In order to challenge your Intoxilyzer results, though, you need a Minnesota DUI lawyer who is smarter than the machine - you need an attorney who will tirelessly search Minnesota and other states, for new and emerging case law and court rulings, scientific discoveries, government publications, police training techniques, medical studies and changes in equipment that the reveal unreliability of Intoxilyzer results like yours.


Only a Minnesota DUI lawyer can tell you if your Intoxilyzer results should be challenged. Mr. Kans has successfully challenged Intoxilyzer results for many of his clients - call today and find out if he can do the same for you.


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