Breath-test Flap Sparks Legal Quagmire Reliability Of Instrument, Certification Questioned

The Arizona Republic
September 3, 1999

BREATH-TEST FLAP SPARKS LEGAL QUAGMIRE
RELIABILITY OF INSTRUMENT, CERTIFICATION QUESTIONED
Brent Whiting, The Arizona Republic

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Authorities started getting suspicious when the Intoxilyzer 5000, a breath-test machine used by police in drunken-driving cases, began acting haywire.


The debate boiled over Tuesday when Glendale Judge John Burkholder issued a 41-page order that tossed out Intoxilyzer 5000 results in 89 DUI cases, not including the nine flagged by Reardon.


Craig Penrod, a Phoenix defense lawyer, said Thursday that other Arizona judges who are weighing the same issues in thousands of pending cases are likely to take notice of Burkholder's ruling.


"The bottom line is that he found the government was acting in bad faith by sifting out things that they didn't want people to see," Penrod said. "The judge should have gone a step further by throwing out the cases entirely."

Meanwhile, he cautioned against a rush to the courthouse by people convicted of drunken driving since 1995 because Chester Flaxmayer, a former DPS criminalist now working for defense lawyers, is examining thousands of cases to determine whether they may have been based on flawed Intoxilyzer 5000 readings.

Flaxmayer's findings are expected to be aired during yet-unscheduled hearings before judges in Maricopa County Superior Court who are considering legal challenges involving the device, Penrod said.

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