In Hawai’i, a motorist “consents” to testing of his/her blood or breath alcohol content through scientific means or approved analytical testing. The approval of the testing is left to the Department of Health, which has heavily regulated the “approved” testing, including the means and procedure of the testing.
Among those regulations is the requirement that an “accuracy verification test” be conducted with each and every breath test. The regulation specifically states that the accuracy verification test is for the purpose of ensuring the tests accuracy. Such verification of accuracy makes sense as the machine’s results (which is then held to be the suspect’s Breath Alcohol Content “BrAC”) are often used to convict a suspect of OVUII.
Through use of Hawai’i’s Information Practices Act, this blogger has learned that the Honolulu Police Department has abandoned accuracy verification tests. In 2008, a sergeant with the HPD wrote a Department of Health representative requesting to use the “Internal Standards” feature of the Intoxilyzer 8000 instead of a control solution to perform accuracy verification tests. In other words, the HPD found it too difficult to ensure that the machine was generating accurate results at the time of the actual test of a suspect. This was (and can only be) accomplished by using another machine which allows the Intoxilyzer 8000 to measure a control substance. Instead, the HPD wanted to rely on the Intoxilyzer 8000 itself in determining whether that particular machine was accurate at the time of the suspect’s test.
Remarkably, the Department of Health representative purportedly APPROVED the Internal Standards feature as an appropriate accuracy verification test. Thus, in Hawai’i, we rely solely on a potentially defective or malfunctioning machine to ensure that the same machine’s generated BAC result is accurate.
The defiance of common sense of using a potentially defective or malfunctioning machine to tell us that it is defective or malfunctioning is not the worst problem created by the abandonment of the “accuracy verification test” requirement. What is worse is the fact that the “Internal Standards” feature does not measure accuracy at all!
“As forensic toxicologist Mary McMurray has pointed out:
The use of an internal ‘standard’ does not serve the same purpose that an external standard does. Internal ‘standards’ are not standards in the true sense of the term. Internals use either the filters themselves or a separate quartz plate as a beam attenuator. This can aid the monitoring of voltages, and indirectly can be considered a monitor of the calibration, however the correlation is very limited. Internal standards do not check or give any insight to the sampling system. Internal standards do not resemble a breath alcohol sample in that there is no moisture or alcohol being measured with an internal standard. Internal standards cannot be used to calibrate a device and are not on the NHTSA Conforming Products List.”
Lawrence Taylor and Steven Oberman, Drunk Driving Defense, § 6.04[F], p. 444 (6th ed.) (2006).
Thus, the current method used by the HPD is not an “accuracy verification test” at all. Instead, they are simply verifying that the beam attenuator is receiving a burst of light. There is no margin of error or other data generated from using the “Internal Standards” feature. There is no measurement, at all, of any solution that could verify accuracy.
This departure, coupled with the fact that all data pertaining to the past and subsequent operation of the machine is hidden from DUI defense lawyers, raises substantial questions about not only the accuracy of test results, but also whether Hawai’i’s citizens are being accurately convicted.