After law enforcement initiate a Kansas
DUI investigation, they will request a
breath test on the Intoxilyzer 8000 at the police station. They are now using the
Intoxilyzer 9000 throughout much of Johnon County, KS. While results of the
PBT are not admissible, the Intoxilyzer results are generally allowed at trial.
Unless of course you DUI attorney can suppress these results. While there
are several different Breathalyzers out there, Kansas law enforcement
utilizes the Intoxilyzer 8000 to test breath for alcohol. The Intoxilyzer
8000 is manufactured by a corporation named CMI, Inc., out of Owensboro,
Kentucky. The manufacturer claims that the machine can filter out various
compounds that often get mistaken for alcohol. They also claim that the
machine can detect "mouth alcohol", that is, alcohol that is
trapped in the mouth but is not in the blood stream. These claims should
be challenged by a DUI lawyer in court because scientific research has
shown them to be flawed. The
reliability of breath tests is often a
problem. The Intoxilyzer 8000 is used in a majority of DUI cases, even though
blood tests are the most accurate form of
chemical testing for
Other things may effect an accurate reading, such as solvents or gases
due to being a painter or other worker who deals with solvents and/or
gases. A person who works around and breaths acetone and/or toluene can
produce a positive reading on the Intoxilyzer 8000, even if they hadn't
being drinking any alcohol. Additionally, the machine is unable to tell
the difference between mouth alcohol and alcohol that is actually in your
blood system Therefore, the Kansas Department of Health and Environment
(KDHE) requires a 20 minute derivation and observation period prior to
administering the Intoxilyzer 8000. This period is important and courts
will not allow the results in if your DUI defense attorney correctly files
the right motion or makes the correct timely objection. Furthermore, the
Intoxilyzer 8000 can provide inaccurate readings due to radio or electrical
interference. Variations in the voltage in the electrical lines or the
use of mobile phones, radios, and police scanners around the machine can
produce a false positive reading.
KDHE inspects the machine for accuracy once each year. After that, the
custodian for the specific Intoxilyzer at the specific location is supposed
to check the machine weekly, perform routine calibration checks, and keep
the maintenance log records updated. This can become a litigated issues
in a DUI case at both the criminal level as well as the administrative
level. Not only is the machine suppossed to be properly certified, but
the law enforcement officer who administered the Intoxilyzer 8000 on you
is supposed to be certified as well to run the
According to a very important Kansas Supreme Court case, in order to introduce
the results of a breath test, the prosecution must lay foundation showing
that the testing machine was operated according to the manufacturer's
operational manual and any regulations set forth by the Department of
Health and Environment.
State v. Lieurance, 14 Kan.App. 2d 87, 91, 782 P.2d 1246 (1990). In other words, before a
breath test can be admitted into evidence at trial, the prosecutor lay
foundation, showing that the breath test operator (law enforcement officer)
operated the machine according to the manufacturer's recommendations
and the rules and regulations established by KDHE.
The operational manual, aka "manufacturer's recommendations,"
for the Intoxilyzer 8000 is supposed to be adhered to. However, most cops
have never read nor seen this manual. Usually, they just follow their
brief training provided via the KDHE protocol, which lays out their protocol,
and their rules and regulations for the Breathalyzer.
As a DUI defense attorney, I refer to the manual used by KDHE to attack
whether the machine was properly certified, whether the protocol was really
followed, and whether the Intoxilyzer 8000 results can really be relied
on. You will hear the term "protocol" used a lot in your DUI case.
As stated earlier, the protocol requires a 20 minute deprivation period.
The officer then starts the machine, which does an internal calibration
and checks for errors. Most officers have no idea what the breathalyzer
it is actually doing though. The DUI subject is then required to blow
into the Intoxilyzer 8000 an extended period of time, until a reading
is recorded. Supposedly, the machine is designed to test only "alveolar
air", which comes from deep lung air. That is why it supposedly requires
a prolonged breathing and hard forced breath. If a subject doesn't
blow hard enough, the machine will read "insufficient sample".
This can then be interpreted as a breath test refusal. A KS DUI defense
lawyer should carefully look over your Intoxilyzer 8000 result printout
to see if there are any issues regarding whether the machine was working
The legal limit in Kansas is .08. Thus, if the
BAC result was .08 or higher, within 3 hours of driving, you may be convicted
of DUI. This is so even if you were capable of safely driving. Obviously,
suppressing the breath test results is extremely important when defending
drunk driving charges.