MINOT, N.D. — I don't think Auditor Josh Gallion and Attorney General Wayne Stenehjem , both Republicans, will be exchanging Christmas cards this year.
A just-released report from Gallion's office found that dozens of breathalyzer tests "were performed by operators using expired or unapproved gas standard canisters resulting in invalid tests."
The specific number was 34 out of 8,925 tests.
"It’s important to follow the DUI testing guidelines so each person tested is fairly evaluated against the same standard,” Gallion said in a release accompanying the report . “We’re happy to hear that after our audit, the Attorney General’s Office is in the process of updating their breath alcohol testing devices so these errors shouldn’t occur again."
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Stenehjem's office says that's a bunch of malarkey.
"In his haste to issue a press release, the Auditor missed critical facts, though we tried more than once to explain them to him," the AG's office said in a released statement.
According to Stenehjem, if expired gas canisters were being used in tests, it's local law enforcement's error, not his office. "We have had in place for many years a process to direct the field inspectors to ensure the gas cylinders are approved and replaced prior to the expiration dates. The Auditor was unable to provide any suggestions relating to acceptable measures that could be taken to satisfy part B of the recommendation."
"The Crime Lab does not perform DUI tests and neither does any other employee of this office," the statement from the AG's office continues. "The DUI tests are conducted by county and city law enforcement officers as well as the Highway Patrol. The Crime Lab provides Intoxilyzer devices to local law enforcement and provides training without charge. Every one of the approximately 1,000+ certified officers is trained on how to replace the gas cylinder, that every cylinder has an expiration date, and that tests run on an expired cylinder are invalid."
"There is no excuse for any law enforcement agency to be using an expired gas cylinder, or for officers to run tests as long as 153 days after the gas cylinder expired, ignoring all the training they were given," the statement says.
Stenehjem's office also accuses Gallion and his auditors of omitting some context for these errors: "Although the Auditor tries to take the credit in his press release, in fact months before the audit was issued, we requested, and the 2021 Legislative Assembly approved, funding to begin replacement of the Intoxilyzer 800 (which requires the officer manually to check that the gas cylinder has not expired) with the Intoxilyzer 900 (which automatically tracks the expiration date and will not permit tests to be run after that date), so these mistakes cannot be repeated."
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It seems both Gallion and Stenehjem make legitimate points. Expired canisters were being used in tests. Gallion's auditors detected this problem and reported it. That's their job. Even Stenehjem's office admits this is unacceptable.
On the other hand, it's important to note that the AG's office has been moving for some time toward updated equipment that makes this sort of mistake, at least theoretically, impossible.
Gallion probably should have noted that corrective action, though I suppose he could argue it's not his job to do public relations for the AG's office. Stenehjem also probably didn't need to respond to this report so aggressively.
I'm not sure either of these elected officials are living up to the sort of professionalism voters should expect from them.
What I'm afraid of is that this pie-throwing contest between politicians might obscure a bigger question we should be asking: Are these breathalyzer machines even reliable?
As The New York Times notes , in 2014 a court in Florida found that the Intoxilyzer 8000 (which sounds something some frat boys would call their beer bong) has shown "significant and continued anomalies." Deriding the device as a "magic black box," Judge Martha Adams ridiculed the assertion of the prosecutors that it doesn't usually have problems. "The prosecution argues most of the tests do not show anomalies. In fact, a high percentage of the tests may show no anomalous operation. That the Intoxilyzer 8000 mostly works is an insufficient response when a citizen's liberty is at risk," she wrote .
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According to the Attorney General's response to the Auditor, there are 118 Intoxilyzer 8000 devices in use in North Dakota. The current process for using them has been in place since 2012. As the AG's office noted, the Legislature appropriated money to replace 61 of them earlier this year with the Intoxilyzer 9000 (which, I'm sorry, just sounds like a new and improved beer bong). Funding to replace the remaining 58 will be sought in future budget cycles.
The Auditor's report flags the process for using the older iteration of the device but clearly, per the Florida court's findings, problems have been known to exist with that device for the better part of a decade. Yet every year thousands of citizens in North Dakota see their liberty put at risk (to borrow words from Judge Adams) by evidence gathered with a machine that may only work most of the time.
When it comes to drunk driving policies, typically all the public wants to hear is how much tougher we're going to get with offenders, but we clearly need to spend some time thinking about the efficacy of our DUI enforcement.
Just last month the state Supreme Court found that a lower court believed a police officer's lie about his reason for a traffic stop that resulted in a DUI arrest despite what was shown on the cop's body camera. Now we learn that not only are local cops sloppy in their use of breath test machines, failing to replace expired canisters, but the devices our state has been using aren't as reliable as we'd like.
Nobody wants drunk drivers on the road, but our enforcement measures have to be better than this.
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .
