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Colorado Springs defense attorney challenges accuracy of DUI breath tests

March 19, 2017 Updated: March 20, 2017 at 12:45 pm
photo - Timothy R. Bussey of The Bussey Law Firm, LLC. (Mark Reis, Gazette file)
Timothy R. Bussey of The Bussey Law Firm, LLC. (Mark Reis, Gazette file) 

A Colorado Springs attorney is among those sounding alarms over how breath test machines were certified in Colorado, claiming a flawed roll out in 2013 could be responsible for wrongful DUI convictions across the state.

Timothy Bussey said he is one of two attorneys who were approached last year by a whistle-blower claiming his signature was forged on certification papers by workers at a state agency for more than 100 machines that estimate blood alcohol content by measuring the amount of alcohol in one's breath - raising questions about the reliability of the results.

Bussey investigated the issue and shared his legal research with fellow attorneys who specialize in drunken driving cases, he said.

"There's such a lack of transparency, and I wanted to share the information that I have," Bussey said.

So far no cases have been overturned as a result of the whistle-blower's disclosures, and the issue has gained little traction in El Paso County courtrooms.

One El Paso County District Court judge dismissed a motion for a case dismissal filed by Bussey, ruling that the issue of certifications was "irrelevant" in the absence of evidence that test results can't be trusted, Bussey said.

The claim has fueled court challenges in several ongoing DUI cases, but so far, state leaders have shown little sign of concern.

Gov. John Hickenlooper rejected a call by the Colorado Criminal Defense Bar earlier this month to order an investigation into the Colorado Department of Public Health and Environment (CDPHE), and the agency has said its own investigation showed no evidence of wrongdoing.

"We believe that an independent investigation is not needed at this time, but if new facts emerge, we can always reconsider," Hickenlooper spokeswoman Jacque Montgomery said.

At issue is how the department went about certifying the Intoxilyzer 9000 units it purchased in 2013 from CMI Inc. of Owensboro, Ky., to replace Colorado's older model. The breath test machines are used by law enforcement groups in traffic enforcement.

The allegation stems from Mike Barnhill, a former CDPHE employee who said his fellow employees were permitted to forge his signature on certifications. He estimated that up to 130 machines weren't properly certified.

"We were under an incredible amount of pressure to get these things out," Barnhill said. He said a college student who worked as a seasonal intern was among the people permitted to use his signature.

CDPHE is responsible for maintaining, testing, validating and certifying the devices, which provide critical evidence against those suspected of driving drunk.

Attorneys argue that if signatures were forged, as alleged, it may be impossible to know if the machines are functioning as promised.

Any BAC result above .08 percent, Colorado's limit for drunken driving, or .05 percent, the limit for driving while ability impaired, a lesser charge, are generally sufficient for conviction at trial.

In defending its roll out of the Intoxilyzer machines, CDPHE says that an internal investigation last fall disproved the idea the machines are inaccurate.

Each machine underwent "rigorous testing" proving they conformed with scientific guidelines before they were even eligible to be certified, the agency said in a question-and-answer sheet prepared in response to the criticism.

"(CDPHE) personnel reviewed the data generated from these procedures for each instrument to ensure that all of the established scientific standards of performance were met," a statement said. "Upon completion of the primary review, a secondary review of the data was also performed for each instrument by another EBAT (evidential breath alcohol testing) staff member."

But those validation results were destroyed, meaning that defendants are left to rely on CDPHE's representations, Bussey said.

"If you have a belief that science is transparent, CDPHE should have no problem releasing any of the information, Bussey said. "The science should speak for itself."

Barnhill mentioned a handful of problems with breath test machines as evidence that testing wasn't as robust as promised.

He pointed to a 2014 incident in Weld County in which a breath test machine continued to operate while malfunctioning. The machines, with built-in monitoring measures, are supposed to shut off automatically if there are problems. As a result, nearly three dozen DUIs were dismissed because CDPHE acknowledged they didn't know if the readings were accurate.

The former CDPHE employee said the problem is proof that the state's breath test program is vulnerable to errors because of flawed certifications.

Under state law, the CDPHE certification is what makes breath test results admissible in the courts, which could make forgeries a criminal act, said Norm Thom, another longtime Colorado Springs attorney.

"The certification is a critical document," Thom said.

Barnhill left CDPHE in 2015 amid concerns over the objectivity of workers in the breath test program. A supervisor referred to Bussey and other prominent DUI attorneys as "the dirty dozen," and discouraged employees from answering his questions about data that were available. Meanwhile, workers in the program were permitted to spend as much time as they wished helping prosecutors, he said.

Barnhill, who now works in home inspections, said he hasn't received any money from Bussey or any attorney in relation to his concerns over breath tests. He has testified at two or three trials without receiving pay, he said.

Bussey said proving a result is inaccurate is all but impossible. Whereas a previous generation of the Intoxilyzer stored a secondary sample for retests, that feature was eliminated about a decade ago.

Barnhill said the sample capture feature was problematic because the samples had to be properly stored to maintain their integrity. If they weren't properly refrigerated, retests couldn't be trusted. But he agreed that if the machines aren't properly calibrated, there would be no way to double check results at a later date.

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