Intox EC/IR II
The North Carolina Department of Health and Human Services (DHHS) oversees the Forensic Tests for Alcohol Branch, which regulates DWI breath-testing instruments for the state. The DHHS has approved all breath-testing instruments listed on the National Highway Traffic Safety Administration (NHTSA), Conforming Products List of Evidentiary Breath Measurement Devices. Most commonly, in North Carolina, law enforcement agencies use the Intox EC/IR II or the Intoxilyzer Model 5000. The Intox EC/IR II is the newer, more reliable model, which is replacing the Intoxilyzer Model 5000 throughout the state. If you are arrested for DWI in the Charlotte-Mecklenburg area, you'll most likely be requested to submit to an evidentiary breath test using the Intox EC/IR II.
Only a law enforcement officer who has been certified by the NC DHHS as a chemical analyst may administer an evidentiary breath test. An officer may be certified as a chemical analyst, also referred to as an operator, by successfully completing the 40-hour NC DHHS chemical analyst course. This course will, typically, train an officer on a specific breath-testing instrument and certify that officer only for that specific type of instrument.
Without getting into the specific science concerning how the instrument works, here is, verbatim, the statement that the NC DHHS makes all graduates of the 40-hour Intox EC/IR II school memorize and recite:
"The Intox EC/IR II is an automated breath testing instrument that detects and measures alcohol in a person's breath using an electrochemical fuel cell. The fuel cell works as an alcohol detector by creating electrical voltage. The more alcohol present, the more voltage produced. The electrical voltage produced determines the alcohol concentration in grams per 210 liters of breath. Infrared energy absorption is used to monitor the breath sample to insure a deep lung sample is collected and not contaminated by mouth alcohol. Test results are displayed, then printed on a test record."
This is the statement that an Intox EC/IR II operator is trained to provide when testifying in court regarding how the Intox EC/IR II works.
Operational Procedures - Intox EC/IR II
It is important that the operator follow the Intox EC/IR II operational procedures exactly as they are listed and have been trained. This is a requirement under North Carolina administrative law (see 10A NCAC 41B .0322) and a variation could lead to the dismissal of your charges. The operational procedures to be followed in using the Intox EC/IR II areas follows:
If the alcohol concentrations differ by more than 0.02, a third or fourth breath breath sample shall be collected when "Please Blow" appears. Subsequent tests shall be administered as soon as feasible by repeating steps (1) through (8), as applicable.
Preventive Maintenance - Intox EC/IR II
A law enforcement agency must also ensure that the proper maintenance is taken to ensure the Intox EC/IR II results are accurate. SImilar to the operation procedures, this is a requirement under North Carolina administrative law (see 10A NCAC 41B .0323) and the failure to maintain an instrument could lead to the dismissal of your charges. The preventive maintenance procedures for the Intox EC/IR II, to be followed at least once every four months, are:
A signed original of the preventive maintenance record shall be kept on file for at least three years.
The NC DHHS usually works with a representative of a law enforcement agency to ensure that all preventive maintenance is performed on all Intox EC/IR II instruments. Occasionally, however, the ethanol gas canisters aren't changed before the expiration date. The preventive maintenance records are available online through the NC DHHS website. These records may be reviewed and compared to your test result print out, which lists the specific instrument serial number used in your case, to ensure that the agency complied with the regulation. Although rare, if a test was administered using an expired gas canister, your case may be dismissed.
Residual Mouth Alcohol
Residual mouth alcohol occurs when alcohol that you have consumed is reintroduced into the mouth from the esophagus or other oral cavities. When residual mouth alcohol is reintroduced into the mouth during a breath test, you will almost certainly provide a falsely elevated breath sample. The operational procedures for the Intox EC/IR II attempt to safeguard against falsely elevated samples from residual mouth alcohol by providing for a 15 minute observation period before the breath test. During this time, the chemical analyst is primarily observing you to ensure that you don't burp or belch. Burping and belching is the most common source of residual mouth alcohol. If a test subject burps or belches, the observation period is supposed to start over to ensure that any residual mouth alcohol has dissipated.
Certain people who suffer from medical conditions such as gastroesophageal reflux disease (GERD) may have difficulty controlling this. People who suffer from GERD often have the contents of their stomachs leak backwards into the esophagus, which may cause burping, belching, and the reintroduction of alcohol into their mouth. The test results in these situations is NOT accurate and most likely falsely elevated.
The Intox EC/IR II, supposedly, has a safeguard, which indicates the presence of residual mouth alcohol. This may be true in case where an abundance of alcohol is reintroduced into the mouth. Where a fractional amount of alcohol is reintroduced, however, the Intox EC/IR II safeguard may not catch it, which may cause an elevation in your test sample.
Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." Generally, this means that a witness offering testimonial evidence against you in the form of cross-examination at trial must be present. Since not all police officers are certified chemical analysts, the charging officer often requires the assistance of an operator in administering the Intox EC/IR II breath test. This is quite common, and, since the results of the Intox EC/IR II breath test are considered testimonial evidence, both the charging officer and the chemical analyst are required to be present in court.
Often times, because of conflicts with scheduling and officer court dates, this chemical analyst is unable to appear on the court date with the charging officer. Although continuances are available to the state in these circumstances, if the chemical analyst continues to fail to appear to testify against you, the DWI charges may be dropped.
Intox EC/IR II Conclusions
The Intox EC/IR II instrument is one of the most reliable breath testing instruments in operation. While this may be true, it only works if the chemical analyst follows the correct operation procedures and preventive maintenance requirements. Straying from these procedures and requirements may be a violation of your rights and provide a falsely elevated breath sample.
If you have any questions regarding the Intox EC/IR II, or a specific Intox EC/IR II test that you took pursuant to a DWI charge, feel free to contact Adkins Law to speak to a DWI lawyer / DUI lawyer. A DWI lawyer from Adkins Law will be happy to give you a free DWI consultation. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.
The North Carolina Department of Health and Human Services (DHHS) oversees the Forensic Tests for Alcohol Branch, which regulates DWI breath-testing instruments for the state. The DHHS has approved all breath-testing instruments listed on the National Highway Traffic Safety Administration (NHTSA), Conforming Products List of Evidentiary Breath Measurement Devices. Most commonly, in North Carolina, law enforcement agencies use the Intox EC/IR II or the Intoxilyzer Model 5000. The Intox EC/IR II is the newer, more reliable model, which is replacing the Intoxilyzer Model 5000 throughout the state. If you are arrested for DWI in the Charlotte-Mecklenburg area, you'll most likely be requested to submit to an evidentiary breath test using the Intox EC/IR II.
Only a law enforcement officer who has been certified by the NC DHHS as a chemical analyst may administer an evidentiary breath test. An officer may be certified as a chemical analyst, also referred to as an operator, by successfully completing the 40-hour NC DHHS chemical analyst course. This course will, typically, train an officer on a specific breath-testing instrument and certify that officer only for that specific type of instrument.
Without getting into the specific science concerning how the instrument works, here is, verbatim, the statement that the NC DHHS makes all graduates of the 40-hour Intox EC/IR II school memorize and recite:
"The Intox EC/IR II is an automated breath testing instrument that detects and measures alcohol in a person's breath using an electrochemical fuel cell. The fuel cell works as an alcohol detector by creating electrical voltage. The more alcohol present, the more voltage produced. The electrical voltage produced determines the alcohol concentration in grams per 210 liters of breath. Infrared energy absorption is used to monitor the breath sample to insure a deep lung sample is collected and not contaminated by mouth alcohol. Test results are displayed, then printed on a test record."
This is the statement that an Intox EC/IR II operator is trained to provide when testifying in court regarding how the Intox EC/IR II works.
Operational Procedures - Intox EC/IR II
It is important that the operator follow the Intox EC/IR II operational procedures exactly as they are listed and have been trained. This is a requirement under North Carolina administrative law (see 10A NCAC 41B .0322) and a variation could lead to the dismissal of your charges. The operational procedures to be followed in using the Intox EC/IR II areas follows:
- Insure instrument displays time and date;
- Insure observation period requirements have been met;
- Initiate breath test sequence;
- Enter information as prompted;
- Verify instrument accuracy;
- When "PLEASE BLOW" appears, collect breath sample;
- When "PLEASE BLOW" appears, collect breath sample;
- Print test record.
If the alcohol concentrations differ by more than 0.02, a third or fourth breath breath sample shall be collected when "Please Blow" appears. Subsequent tests shall be administered as soon as feasible by repeating steps (1) through (8), as applicable.
Preventive Maintenance - Intox EC/IR II
A law enforcement agency must also ensure that the proper maintenance is taken to ensure the Intox EC/IR II results are accurate. SImilar to the operation procedures, this is a requirement under North Carolina administrative law (see 10A NCAC 41B .0323) and the failure to maintain an instrument could lead to the dismissal of your charges. The preventive maintenance procedures for the Intox EC/IR II, to be followed at least once every four months, are:
- Verify the ethanol gas canister displays pressure, or the alcoholic breath simulator thermometer shows 34 degrees, plus or minus .2 degree centigrade;
- Verify instrument displays time and date;
- Initiate breath test sequence;
- Enter information as prompted;
- Verify instrument accuracy;
- When "PLEASE BLOW" appears, collect breath sample;
- When "PLEASE BLOW" appears, collect breath sample;
- Print test record;
- Verify Diagnostic Program; and
- Verify that the ethanol gas canister is being changed before expiration date, or the alcoholic breath simulator solution is being changed every four months or after 125 Alcoholic Breath Simulator tests, whichever occurs first.
A signed original of the preventive maintenance record shall be kept on file for at least three years.
The NC DHHS usually works with a representative of a law enforcement agency to ensure that all preventive maintenance is performed on all Intox EC/IR II instruments. Occasionally, however, the ethanol gas canisters aren't changed before the expiration date. The preventive maintenance records are available online through the NC DHHS website. These records may be reviewed and compared to your test result print out, which lists the specific instrument serial number used in your case, to ensure that the agency complied with the regulation. Although rare, if a test was administered using an expired gas canister, your case may be dismissed.
Residual Mouth Alcohol
Residual mouth alcohol occurs when alcohol that you have consumed is reintroduced into the mouth from the esophagus or other oral cavities. When residual mouth alcohol is reintroduced into the mouth during a breath test, you will almost certainly provide a falsely elevated breath sample. The operational procedures for the Intox EC/IR II attempt to safeguard against falsely elevated samples from residual mouth alcohol by providing for a 15 minute observation period before the breath test. During this time, the chemical analyst is primarily observing you to ensure that you don't burp or belch. Burping and belching is the most common source of residual mouth alcohol. If a test subject burps or belches, the observation period is supposed to start over to ensure that any residual mouth alcohol has dissipated.
Certain people who suffer from medical conditions such as gastroesophageal reflux disease (GERD) may have difficulty controlling this. People who suffer from GERD often have the contents of their stomachs leak backwards into the esophagus, which may cause burping, belching, and the reintroduction of alcohol into their mouth. The test results in these situations is NOT accurate and most likely falsely elevated.
The Intox EC/IR II, supposedly, has a safeguard, which indicates the presence of residual mouth alcohol. This may be true in case where an abundance of alcohol is reintroduced into the mouth. Where a fractional amount of alcohol is reintroduced, however, the Intox EC/IR II safeguard may not catch it, which may cause an elevation in your test sample.
Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." Generally, this means that a witness offering testimonial evidence against you in the form of cross-examination at trial must be present. Since not all police officers are certified chemical analysts, the charging officer often requires the assistance of an operator in administering the Intox EC/IR II breath test. This is quite common, and, since the results of the Intox EC/IR II breath test are considered testimonial evidence, both the charging officer and the chemical analyst are required to be present in court.
Often times, because of conflicts with scheduling and officer court dates, this chemical analyst is unable to appear on the court date with the charging officer. Although continuances are available to the state in these circumstances, if the chemical analyst continues to fail to appear to testify against you, the DWI charges may be dropped.
Intox EC/IR II Conclusions
The Intox EC/IR II instrument is one of the most reliable breath testing instruments in operation. While this may be true, it only works if the chemical analyst follows the correct operation procedures and preventive maintenance requirements. Straying from these procedures and requirements may be a violation of your rights and provide a falsely elevated breath sample.
If you have any questions regarding the Intox EC/IR II, or a specific Intox EC/IR II test that you took pursuant to a DWI charge, feel free to contact Adkins Law to speak to a DWI lawyer / DUI lawyer. A DWI lawyer from Adkins Law will be happy to give you a free DWI consultation. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.