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Lum v. City of Brewton12/2/2003
E>"There was evidence that, before and after a breath test, the I-5000 sets itself to zero. Dr. Jensen explained that this was not an internal check for calibration or accuracy, but only the setting of a baseline to adjust for the presence of any alcohol in the air of the room. This setting to zero, according to Dr. Jensen, does not assure that the I-5000 will accurately measure a breath sample. The DFS [Department of Forensic Sciences] witnesses did not contradict Dr. Jensen's testimony in this regard. Based on this evidence, we hold that the Court of Criminal Appeals in Harris v. State, 601 So. 2d 1099 (Ala. Cr. App. 1991), erroneously followed Ex parte Reed, 492 So. 2d 293 (Ala. 1986), in holding:
"'The State is not required to prove that the machine used for testing had been previously determined to be accurate and had been periodically inspected. Ex parte Reed, 492 So. 2d 294 (Ala. 1986). Trooper Hall testified that the instrument checks itself, sets to zero, takes its sample, then resets to zero, thus establishing the internal accuracy checks. Hence, it was merely harmless error for the trial court to allow Hall to testify concerning the log.'
"601 So. 2d at 1102 (emphasis added [in Ex parte Mayo]). Reed concerned a P.E.I. machine, which, as explained above, was calibrated by the operator at the time of a breath test. The error in the conclusion that the I-5000 internally checked itself for accuracy was not apparent from the record in Harris (this Court quashed its writ of certiorari), but, now that the error is apparent from Dr. Jensen's testimony, we overrule Harris to the extent that it relied on such a conclusion.
"....
"... he failure to verify the accuracy and reliability of the I-5000 at each individual breath test makes the monthly inspection more critical. We contrast this situation with the situation involving the P.E.I. machine, which was calibrated each time a test was given, causing the Court to hold in Bush and Reed that this individualized calibration made the monthly inspection less important.
"....
"... At a minimum, DFS should adopt ... particularized rules to ensure that the Intoxilyzer 5000 machines are effectively inspected for accuracy and reliability. If DFS chooses to adopt the procedures advocated by Mayo's witness for testing the machine with a simulator at the time of a breath test and for administering two breath tests, the significance of any periodic inspections will decrease ...."
Ex parte Mayo, 652 So. 2d 201, 205-09 (Ala. 1994)(emphasis added).
It is clear from the testimony presented at trial as well as from the regulations of the Department that the Draeger is more akin to the P.E.I. than it is to the I-5000. Unlike the situation with the I-5000, the fact that the person administering the test followed the operating rules of the Department for the point in time the test is given alone establishes that the Draeger has given an accurate result in a particular test. The Draeger device is entirely computerized and controlled by software; when a test sequence is initiated, the operator must follow a checklist, just as with the P.E.I., and input certain information, see Reg. 370-1-1-.01(4)(b). If any of the information is not properly input, the device aborts the testing sequence. In addition, the device performs a calibration check immediately before each breath test and immediately after each breath test, as well as internal diagnostic checks 128 times per second. Unlike the I-5000, the calibration and diagnostic checks do not merely reset the device to z
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