Colorado judge: Breath test evidence in DUI cases “something other than the truth”

Jack Queen
A breathalyzer at the Summit County jail, where DUI suspects are tested for their blood alcohol content. An order handed down by a Gilpin County judge last week holds that results from the machine are inadmissible as evidence because state regulators falsified certificates attesting to their accuracy for 18 months.
Jack Queen / |

Dozens of pending driving under the influence cases and prior convictions are now in legal limbo in Summit County after Judge Edward Casias deferred to a new statewide precedent that bars the use of blood alcohol testing machine results as evidence.

The precedent, handed down in an order by Gilpin County Judge David Taylor last Monday, admonished state regulators for knowingly producing falsified certificates attesting to the accuracy of breathalyzer machines in court, a practice the defendant in that case described as “the biggest scandal in the history of alcohol testing.”

The order came after three days and 20 hours of testimony in the case of Robert Friedlander, who was arrested for a DUI while driving near Black Hawk last year but insists he wasn’t over the legal limit.

Given the broad scope of the hearings, Judge Taylor’s order is likely to serve as statewide precedent unless prosecutors successfully appeal the order, said Friedlander’s attorney Danny Luneau.

“There have been judges all over the state who were waiting for an opinion in the Gilpin case,” he said. “I haven’t heard of one judge in the state that hasn’t deferred to it.”

The order potentially affects all Colorado DUI cases from July 2015 to January 2017 that include test results from the Intoxilyzer-9000 machines used in police stations and jails statewide.

The Colorado Department of Public Health and Environment issues certificates that are presented in court to prove the machines are accurate and have been properly tested.

For 18 months, however, those certificates were being generated with the forged signature of Dr. Laura Gilllim-Ross, who had departed from her role as director of CDPHE’s laboratory services division in July 2015.

In a sworn statement, Gillim-Ross said she was not aware that her signature continued to be used after her departure, nor was she “involved in any way” with the certification of the machines.

Each Intoxilyzer machine automatically generates the certificates. According to testimony by a current CDPHE employee, the agency knew that the signatures were inaccurate but chose to not immediately fix the problem, instead waiting to do so as part of a planned software update.

The result was thousands of “inaccurate, misleading and deceptive,” certificates being filed in court, according to Judge Taylor’s order, which found that they were not only inadmissible but also violated defendants’ rights to due process.

Luneau, who is based in Denver, said he has already received calls from dozens of clients who are planning to seek reversal of their DUI guilty pleas on due process grounds.

A caveat in the order allows for prosecutors to still admit Intoxilyzer evidence by other means. But Luneau said doing so could be very difficult and require extensive expert testimony that used to be forgone when certificates were submitted.

“That’s going to be a problem for prosecutors because those experts probably won’t be able to say whether or not these machines were operating accurately on the particular day a person was tested,” he said.

Prosecutors have filed a motion to reconsider, and if that is rejected they will likely appeal, Luneau said. He expressed doubts, however, that prosecutors would prevail, citing the extensive nature of his case’s testimony and the egregious behavior it revealed at CDPHE.

“The order is a sanction for their conduct,” Luneau said. “They went 18 months without correcting it, and now the reliability of breath machine evidence statewide has been called into question.”

The office of Governor John Hickenlooper has said an internal investigation turned up no evidence of wrongdoing at CDPHE. The agency has said that the presence of the signatures was not intended to show whether or not the machine was properly calibrated.

District Attorney Bruce Brown could not be reached for comment on Monday afternoon, although he has previously told the Summit Daily that his office has confidence in the test results and considers the signature issue a matter of form rather than substance.

Judge Taylor’s ruling didn’t question the accuracy of the machines based on the fraudulent signatures but nonetheless held that they created evidence “that is something other than the truth.”

“If a person is to stand convicted, that conviction will rest upon the commitment of the Government, in its entirety, to absolute truth and honesty — and thus to integrity,” he wrote. “While mistakes in this process can and do happen, we as a society must do all that we can to both limit their occurrence and their impact.”

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