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Univ. of South Carolina School of Law

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Sunday, February 15, 2009

KKK In A Box?: Connecticut To Replace Controversial Intoxilyzer 5000 With Equally Controversial Alcotest 7110 MKIII-C

I've written three previous posts (here, here, and here), about the New Jersey controversy over its Breathalyzer alternative, the Alcotest 7110 MK III-C, a breath alcohol testing technology which uses both infrared and electromechanical analysis as a dual system of chemical breath testing.

In brief, that controversy went as follows:

-the Supreme Court of New Jersey had questions about the reliability of that test;

-appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it;

-Judge King initially reported that the technology was unreliable in a 268 page report;

-Judge King later reversed himself in a 108 page report, which indicated that despite "minor defects" with the technology, it is more reliable than the Breathalyzer; and

-the Supreme Court of New Jersey found that the Alcotest was sufficiently reliable to be used in drunk driving prosecutions, but only if officers follow certain procedures such as observing suspects for twenty minutes before administering the test.

At the time of those posts, I mused whether the court was acting based upon actually thinking that the test is reliable or whether it was a "judiciary under the influence" because 10,000 drunken driving prosecutions involving the test were put on hold while the Court decided whether the test was reliable and admissible.

But, my concerns aside, New Jersey is now using the Alcotest 7110 MK III-C, and Connecticut has just decided to follow suit as it will spend nearly $1 million to replace its current Intoxilyzer 5000 with the Alcotest. According to Lt. J. Paul Vance, the State Police spokesman, "The new machines are better technology. The current machines are seven years old and the cost to maintain them far outweighs buying new ones."

And while I have no doubt that this was part of the motivation for the switch, I am sure that a motion by attorney James "Jay" Ruane played a part as well. Ruane recently filed a motion in Superior Court on behalf of a Norwalk client arrested for drunken driving, claiming the Intoxilyzer 5000 discriminate against African-Americans. Or, as Ruane puts it with regard to the Intoxilyzer 5000s, "They are KKK in a box." The basis for this claim is that that "Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and with his own research determined the Intoxilyzer 5000 does not adequately test black men." (Specifically, according to Hlastala, the lung capacity of an African-American male is approximately 3% smaller than that of a Caucasian. "Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, [and] the Intoxilyzer 5000 results are inflated by a factor of 3 percent," Hlastala concluded).

Of course the question remains whether the Alcotest 7110 MK III-C adequately tests anyone.

-CM

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