North Dakota's state auditor says dozens of DUI tests run with substandard equipment are invalid and can be dismissed in court, though one legal expert says it's unlikely to help defendants.
An audit of the attorney general's office found 34 "errored tests" out of nearly 9,000 DUI tests done in a 2018-20 period due to expired or unapproved gas standard canisters, which ensure a breath alcohol test is working correctly. Attorney General Wayne Stenehjem said officers have training on canisters' expiration, saying "there is no excuse" for law enforcement agencies to be using expired canisters.
The audit found 16 cases that resulted in DUI charges. One test was run as late as five months after a canister expired.
āItās important to follow the DUI testing guidelines so each person tested is fairly evaluated against the same standard,ā State Auditor Josh Gallion said in a statement Wednesday. āWeāre happy to hear that after our audit, the attorney generalās office is in the process of updating their breath alcohol testing devices so these errors shouldnāt occur again.ā
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The attorney general in a statement said, "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 audit points to the State Crime Lab for the issue, citing its "supervisory authority." The lab is part of the attorney general's office.Ā
Stenehjem said neither the lab nor his office's employees perform DUI tests. That's done by county and city law enforcement officers and state Highway Patrol troopers. The lab does provide the test devices to the agencies and provides training at no charge.
"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," Stenehjem said.
The attorney general and the auditor's office disagreed over what "corrective actions" have been in place related to the canisters.
Stenehjem said a process has been around for years "to direct the field inspectors to ensure the gas cylinders are approved and replaced prior to the expiration dates." The auditor's office disagrees, citing its findings.
Stenehjem requested and the 2021 Legislature provided funding to begin replacing the test devices "in fact months before the audit was issued," he said. The new devices will track the expiration date and not allow tests to be run after they expire "so these mistakes cannot be repeated," Stenehjem said.
People with DUI convictions resulting from the invalid tests have little if any recourse, according to Fargo attorney Mark Friese, who specializes in DUI cases.
Defendants with active cases can try to have test results excluded at trial, but the state toxicologist could testify there are "other fail-safes that would trigger an error on the test report and the mere fact that it was expired didn't render them inaccurate," Friese said. And arresting officers can testify about their observations.
Defendants can review their test records online or consult an attorney on their case, Friese added. Breath alcohol tests "are notoriously known to be inaccurate and subject to error," he said.
"Stop finger-pointing, implement some procedures to make sure it doesn't happen, and maybe we should rethink whether we're actually using breath tests to convict people of DUIs in the first instance," he said.Ā
Audit Manager Allison Bader said the DUI tests came under scrutiny because "we just haven't looked at this area recently" among the attorney general's myriad other responsibilities and programs. Audits are time-limited, she noted.
It's not the first time Gallion has irritated a fellow Republican state official.
In 2018, Gov. Doug Burgum's office disputed audit findings that the governor and lieutenant governor had used state planes for commuting and carrying "non-state employees without a business purpose."
Last year, the governor and some Republican state lawmakers criticized how Gallion handled audit findings of the state Commerce Department and State Library. Gallion had advanced some audit findings to the attorney general, who referred the information for criminal investigation. No charges resulted. The 2021 Legislature reimbursed attorney fees of those investigated.
Burgum saidĀ the audits "have created an environment of real fear among state employees."