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Harkins v. State3/31/1999
es "should adopt particularized rules to ensure that the Intoxilyzer 5000 machines are effectively inspected for accuracy and reliability." See Ex parte Mayo, 652 So. 2d 201, 208 (Ala. 1994).
. The Intoxilyzer 5000 machine has not been officially adopted by the Mississippi Legislature and is produced in an oligopoly market in which motivation to perfect the machine may be reduced given the minimal competition between only two manufacturers. When the intoxilyzer test statute was first enacted, the validity of the old machines was not questioned as it was common knowledge that the machine was defective since it only had one filter to process everything through. Yet, few contested the machine's validity since the fine was relatively diminutive, i.e., less than $100.00. Today the penalty is severe and a serious misdemeanor, or, ultimately on a third offense, a felony.
. Since the time of the intoxilyzer's introduction, the manufacturers have graduated from the Intoxilyzer 3000 model to the 5000 model. However, the two manufacturers embroiled themselves in a Kentucky lawsuit in which they each attempted to show that the other manufacturer's machine was defective. Ultimately, the suit was dropped, which inherently demonstrated that both manufacturers' machines were defective. Apparently, both manufacturers realized that if they continued their suit against each other both machines would indeed publicly be proven defective. Hence, the oligopoly in defective machines continues.
. The Intoxilyzer 5000 results are being excluded by some Judges in the Atlanta, Georgia, area. Exclusion of the results is understandable since "dental work such as plates or bridge work, consumption of antibiotics, diet pills, and even M&M;candy and white bread can cause alcohol breath-analyzing machines to register as much as a .08," which is dangerously close to Mississippi's .10% level of legal intoxication. See William C. Head, Alcohol Breath Test Machine's Accuracy Disputed Nationally (last modified June 19, 1996) .
. The dangers of the intoxilyzer machine are evident. The right of requiring that the defendant be allowed to confront the witnesses should be inviolate. Accordingly, I Dissent in part.
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