Thousands of DUI convictions in passed down between July of 2015 and January of 2017 are being called into question after a Colorado judge ruled that evidence from a breathalyzer, the Intoxilyzer 9000, could not be used in the DUI case of Robert Friedlander.
The results in question center around the use of a popular machine which tests for blood alcohol content in the field, the Intoxilyzer 9000. Each breathalyzer must be checked by a technician from the Colorado Department of Public Health and Environment every year, and then the technician must sign a certificate stating the machine's accuracy. However, defense attorneys and one former employee, Mark Barnhill, are claiming that many of the signatures on these breathalyzers' certificates were forged and the machines had not been properly evaluated.
Defense lawyers believe that these forged signatures call the results of blood alcohol content tests completed using the Intoxilyzer 9000 into question. The case of Robert Friedlander has been closely watched by DUI defense attorneys and law enforcement around the state of Colorado because it has widespread implications for thousands of other cases. It is one of the first cases where evidence from an Intoxilyzer 9000 is called into question by the defense. In March, the Colorado Defense Bar requested that Governor John Hickenlooper launches a formal investigation into the machines' certification history.
The defense attorney for Robert Friedlander, Danny Luneau, says that the situation is “an enormous mess and the department of health really created a problem for themselves and for the court system.” He asserts that his client was not over the legal limit, as Friedlander had allegedly performed a blood alcohol content test on himself before driving on the night of his arrest. Luneau commented that "If you have a program, a breath-testing program that's accurate, scientifically reliable and transparent, not only will innocent people not get convicted, guilty people, will not be able to get off using these arguments."
The Colorado Department of Public Health and Environment maintains that the signatures are merely a formality which should not call into question the reliability of evidence gathered using the Intoxilyzer 9000s. A spokesperson for the department says that the signatures only certify the completion of a “standardized test.” They say that the documents containing the forged signatures “do not certify the breathalyzer, but merely prove that the machine works like it's intended.”
Gilpin County Judge David Taylor wrote in an order, "This Instrument Certificate is, at best, misleading. It contains the signature of a person that did not approve it.” Taylor continued, "CDPHE's decisions have created evidence that is not accurate. No one disputes this inaccuracy. Although CDPHE did not have any evil intent, this inaccuracy is nevertheless a predictable result of CDPHE's purposeful conduct. Due process cannot survive if false evidence resulting from intentional government conduct is admitted in an effort to deprive a person of freedom."
The case will certainly be watched closely as it moves forward by all interested parties within the state and around the country. In Washington state, a similar situation occurred when it was discovered several toxicologists from the Washington State Toxicology had sloppy work and perhaps committed fraud. It lead to the former head of the lab to resign in 2008. Dramatic changes occurred within the lab over the next several months.