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Breath Test Challenge Choked Off

Author(s): DAVID REYNOLDS, Daily News-Record Date: June 27, 2007 Section: Front Page

HARRISONBURG - A judge denied an attorney's request that an expert examine the
local jail's Intoxilyzer 5000 SN 68 - derailing an attack on equipment used to measure
blood alcohol content throughout Virginia. On Tuesday, Rockingham County General
District Court Judge Larry Bowers ruled that language in a government document that
called the machine "unreliable" doesn't necessarily mean it's broken.
"It comes from a document that is a request for funding and [doesn't have] anything to do
with the [operation] of the machine itself," Bowers said, during his ruling.
The Virginia Department of Forensic Science, the agency charged with maintaining the
BAC-testing equipment, has disavowed the "unreliable" description, which appeared on a
2005 budget request.
DFS Director Pete Marone has said a financial person filled out the request not a
technical expert.
Assistant Commonwealth's Attorney Alycia Eldridge called DFS experts as witnesses for
Tuesday's hearing, but their testimony wasn't needed, Bowers said.
The Motion
Robert Keefer, a defense attorney who specializes in DUI cases, filed the request on
behalf of Teddy Burnell Watkins, who is fighting a DUI arrest that occurred Feb. 17.
Keefer has said the jail's machine, which put Watkins' BAC at 0.19, is inaccurate and
that his client wasn't too drunk to drive.
To support his claim, Keefer leaned on the DFS funding request, which called the
machines "outdated, unstable and unreliable."
Since the motion was filed two weeks ago, DFS has disavowed the language on its
document and said its machines are accurate.
Also, Rockingham County Sheriff Don Farley, Eldridge and the machine's manufacturer,
CMI Inc., all say it works fine.
The Hearing
During the hearing, Eldridge said that DFS and Farley oppose Keefer's request for an
outside expert.
Also, Virginia law requires defense experts to research cases independently of the
government and its equipment, she said. The machine housed at the Rockingham County
Regional Jail is DFS' equipment, she said.
If they had testified, the DFS experts would have said that the machine is checked every
six months, and that trained operators must pledge that they followed strict procedures on
each test, Eldridge said after the hearing.
Also after the hearing, DFS Director Pete Marone said that the wording in the request for
$1.7 million in funding for new machines was later clarified in meetings with legislators.
The department needed to replace the aging machines with newer technology, Marone
said, not because the current ones aren't working.
Should there be an equipment problem, the machine would shut itself off rather than
operate inaccurately, Marone said.
"There's nothing wrong with the equipment," he said. "It's [just] getting old."
He also said that whenever DFS upgrades its equipment some will question the accuracy
of the outgoing machines.
In the coming years, DFS will phase in new machines currently in development by
Intoximeter, Marone said.
Keefer declined to comment on the ruling.
"The judge made his decision," he said.
Watkins case is set for July 12 at 9 a.m. in general district court.
Contact David Reynolds at 574-6278 or reynolds@dnronline.com