If you were sentenced for a drunk driving charge under Denver DUI laws, forgery allegations create doubt. If you feel that your legal matter may be affected by this news, you should contact our attorneys at the Law Office of Joseph W. Galera in Denver right away. Our firm primarily specializes in DUI, criminal law, marijuana dispensaries, civil rights, employment law.
According to a recent Denver Post article, Colorado defense attorneys are calling into question the validity of DUI convictions when it was discovered that a technician who was in charge of certifying the state’s breathalyzer test machines said someone forged his signature on more than 100 records in 2013.
The Colorado Department of Public Health and Environment (CDPHE) validates, certifies, and maintains the Intoxilyzer 9000, which is the instrument used to test the blood-alcohol content of every suspected drunken driver here in Colorado. Two hundred of these machines are used at 165 law enforcement agencies across the state.
Colorado’s Governor John Hickenlooper doesn’t want an independent investigation of the Intoxilyzer 9000 or the certification process used for every breath test machine in the state. The governor’s legal counsel believes a complete review has already has been done. The result of that review was that there was no evidence of misconduct found. The counsel suggested if new facts emerge they can always take another look at it.
But Mike Barnhill is a former electronics specialist in the state lab. According to the Post article, he became worried about the machines’ certifications after a supervisor instructed three people who were not technicians and two of whom were not state employees to calibrate and validate the machines and then sign his name on the certification forms. Barnhill also questions the state investigation results because they didn’t even talk to him.
It is suspicious because some recent certificates are showing a former laboratory director’s signature but the problem is she’s been gone from the CDPHE since July 2015. Believe it or not, those problem certificates are being used in DUI trials to show machines were recording accurate blood-alcohol content (BAC). The Post article explains that under these circumstances the President of the Colorado Criminal Defense Bar Darren Cantor questions whether the CDPHE lab can realistically testify to the truthfulness of their machines in a court of law.
The lawyers, judges, and juries use the results of alcohol breath tests when deciding charges, verdicts, and punishments. Under Colorado law, no expert needs to testify about a breathalyzer test machine’s accuracy, instead, these certificates themselves are the sole proof relied on during a trial to confirm that the machine is working properly. But perhaps they are not as scientific and reliable as they think.
The defense attorneys point out the correct procedure is to have the breathalyzer machines calibrated and validated by trained technicians, and the certifications signed by the person who conducted those tests.
According to the Post article, Barnhill says in 2013, in a hurry to deploy the machines to police and sheriffs, the state health department’s lab brought in a lawyer and a marketing specialist from the Intoxilyzer 9000’s manufacturer and a department intern to validate and certify them. Barnhill and another technician set up about two dozen of the 165 machines that are sent to each Colorado law enforcement agency. But Jeff Groff who was in charge of the breath alcohol-testing program told them to enter Barnhill’s passcode to operate the machines and then to sign his name to the certifications. Barnhill subsequently quit in 2015.
At least 130 allegedly forged certificates have been found so far.
In late 2015, DUI defense lawyers noticed that the breathalyzer machine certifications used in court cases had the signature of former state health department laboratory director Laura Gillim-Ross on them even though Gillim-Ross had left the agency. This raised questions about the legitimacy of the machines’ certifications. Gillim-Ross says that the signing of the certificates was not her job and she didn’t authorize anyone else to use her electronic signature.
The state health department says Gillim-Ross’ signature is no longer being used and has been removed from all but five or six devices. After discovering the questionable signatures, Colorado defense attorneys began to look into the Intoxilyzer 9000’s rollout in 2013, and they discovered additional potential Barnhill forgeries.
Using the Colorado Open Records Act, the defense attorneys requested the health department’s lab data that shows how a particular machine was validated and to make sure it was scientific and reliable, but those requests were denied. They were told the data had been destroyed. Instead, they received the possibly forged validated certificates.
According to the Post article, the state health department director conducted an internal investigation to see if unqualified people had certified the Intoxilyzer 9000s. The result of the investigation was that the appropriate process had been used and calibrations and verifications were conducted by the appropriate personnel or under their supervision.
The health department revalidates and recertifies them every year.
The Intoxilyzer 9000 and the certificates with the possibly forged former lab director’s signature on them are being challenged in a federal lawsuit against the Louisville Police Department, the state health department, and its employees, and CMI, the company that makes the Intoxilyzer 9000. In Weld County, 33 DUI cases were dismissed after they showed an Intoxilyzer 9000 was recording blood-alcohol levels higher than they actually were and the machine’s calibrations were off. Other cases are being challenged as well.
There is uncertainty in the Denver DUI laws, forgery allegations create doubt. Our attorneys at the Law Office of Joseph W. Galera are dedicated to helping our clients achieve their legal goals. We are available to help you with your legal questions. The firm is here to protect your rights and serve as an advocate for your needs. If you have been convicted of a DUI during the contested time frame, contact our office.