As a seasoned DUI attorney in Georgia, I’ve seen firsthand how critical it is to understand the tools and procedures used by law enforcement in DUI cases. One of the most pivotal instruments in this arena is the Intoxilyzer 9000, the state’s approved device for evidential breath alcohol testing. The Georgia Bureau of Investigation’s (GBI) Intoxilyzer 9000 Georgia Operator’s Refresher Training Manual (2017 Revision) provides a wealth of information about this machine, its operation, and the legal framework surrounding its use. In this blog post, I’ll break down key insights from the manual to empower drivers, defendants, and legal professionals with knowledge about the Intoxilyzer 9000 and its role in DUI cases. Whether you’re facing a DUI charge or simply want to understand your rights, this guide will shed light on the complexities of breath alcohol testing in Georgia.

The Intoxilyzer 9000: Georgia’s Gold Standard for Breath Testing

Since January 1, 2013, the Intoxilyzer 9000, manufactured by CMI, Inc., has been the sole approved instrument for evidential breath alcohol testing in Georgia, replacing its predecessor, the Intoxilyzer 5000. According to the GBI’s manual, this transition was formalized under GBI Rule 92-3, which outlines the approved methods for chemical testing of alcohol in breath. The Intoxilyzer 9000 is designed to measure a driver’s breath alcohol concentration (BrAC) to determine if they are driving under the influence (DUI) in violation of O.C.G.A. § 40-6-391.

The manual emphasizes that breath tests must be conducted:

• On an approved instrument (the Intoxilyzer 9000).
• By a certified operator holding a valid permit.
• On an instrument that has been periodically checked for calibration and operation.

These requirements are critical because any deviation can potentially render test results inadmissible in court. As a DUI attorney, I often scrutinize these elements to ensure law enforcement adhered to proper protocol.

Legal Foundations of DUI Testing in Georgia

The manual provides an in-depth look at the legal framework governing DUI arrests and chemical testing, which is essential for anyone facing a DUI charge. Let’s explore the key statutes and principles:

  1. Georgia’s Implied Consent Law (O.C.G.A. § 40-5-55)

Georgia’s Implied Consent Law stipulates that by operating a motor vehicle on the state’s roads, drivers implicitly consent to chemical testing of their blood, breath, or urine if arrested for DUI with probable cause. This law is a cornerstone of DUI enforcement, but it’s not without limitations. For example, the manual notes that voluntary consent must be obtained, and samples from unconscious individuals require a warrant or exigent circumstances.

  2. Implied Consent Notice (O.C.G.A. § 40-5-67.1)

When an officer arrests someone for DUI, they must read the Implied Consent Notice, which informs the driver of their rights and the consequences of refusing or submitting to testing. The manual stresses that this notice must be read:

• After the point of arrest.
• As close to the arrest as possible.
• Without altering the notice’s substantial meaning.
• In English (though a translator must be provided for hearing-impaired individuals).

Failure to follow these guidelines can lead to suppression of test results. For instance, cases like Hough v. State and Handschuh v. State, 279 Ga. 711, 620 SE2d 380 (2005) highlight that reading the notice before a formal arrest can invalidate the test.

  3. Chemical Testing Statute (O.C.G.A. § 40-6-392)

This statute outlines the requirements for admissible chemical tests, including that the GBI must:

• Approve testing methods.
• Issue permits to qualified operators.
• Ensure instruments are properly maintained and certified.

The manual also references the 2016 U.S. Supreme Court ruling in Birchfield v. North Dakota, 579 US 438, 136 S.Ct. 2160 (2016), which allows warrantless breath tests as a search incident to a lawful arrest but requires warrants for blood tests. Despite this, Georgia still advises officers to read the Implied Consent Notice for breath tests to ensure compliance with state law.

  4.  DUI Statute (O.C.G.A. § 40-6-391)

The DUI statute defines nine ways a driver can be considered “under the influence,” including:

• Less Safe DUI: Driving while impaired by alcohol, drugs, or inhalants to the extent it renders the driver less safe.
• Per Se DUI: Driving with a blood or breath alcohol concentration (BAC/BrAC) above the legal limit (0.08 for drivers 21+, 0.04 for commercial drivers, 0.02 for drivers under 21).

Understanding these distinctions is crucial for building a defense, as “less safe” cases often rely on subjective officer observations, while “per se” cases hinge on chemical test results.

The Science Behind the Intoxilyzer 9000

The manual delves into the science of alcohol toxicology and pharmacokinetics, which are vital for challenging breath test results. Here’s what you need to know:

Alcohol Impairment and BAC

Alcohol is a depressant that impairs cognitive and motor functions by interfering with neurotransmitters in the nervous system. The manual outlines stages of intoxication based on BAC ranges, each with distinct manifestations and driving impairments:

• Near Sobriety (0.01-0.05 BAC): Subtle impairments in judgment and attention, with studies showing driving impairment at 0.05 or lower.
• Euphoria (0.03-0.12 BAC): Increased risk-taking, impaired depth perception, and difficulty maintaining lane position. A BAC of 0.08 increases crash risk by approximately 300%.
• Excitement (0.09-0.25 BAC): Incoordination, slurred speech, and braking errors. The average BAC in DUI-related fatalities is 0.12-0.16.
• Confusion (0.18-0.30 BAC): Gross incoordination and disorientation, with a crash risk increase of 4,500% at 0.17.
• Stupor and Coma/Death (>0.25 BAC): Severe impairment or lethality.

Importantly, the manual acknowledges that tolerance can affect how impairment manifests. Habitual drinkers may appear less impaired on simple tasks (e.g., walking, talking) but show little tolerance for complex tasks like driving, which involve judgment and divided attention.

Pharmacokinetics: Why BAC Varies

The manual explains that BAC is dynamic, influenced by four processes:

• Administration: The amount, type, and frequency of alcohol consumed.
• Absorption: How quickly alcohol moves from the stomach to the bloodstream, affected by food intake and physiological factors.
• Distribution: How alcohol spreads throughout the body’s water-containing tissues, influenced by weight and body fat percentage (women typically have higher BACs than men of the same weight due to higher body fat).
• Elimination: The liver metabolizes 90-95% of alcohol, with the rest excreted via breath, urine, and sweat. Elimination rates vary but average 0.015 g/210L per hour.

These factors mean that two people consuming the same amount of alcohol may have different BACs, which can be a key defense point. For example, the manual’s drink charts  show estimated BACs based on weight and gender, but they don’t account for unabsorbed alcohol or elimination, making them imprecise for legal purposes.

Breath Testing Limitations

The Intoxilyzer 9000 measures alcohol in breath, which is correlated to blood alcohol via a 2100:1 partition ratio (2100 parts of breath alcohol equal 1 part of blood alcohol). However, the manual notes limitations:

• Mouth Alcohol: Residual alcohol in the mouth can falsely elevate readings, requiring a 20-minute observation period to ensure no eating, drinking, or regurgitation.
• Interfering Substances: Certain compounds (e.g., acetone in diabetics) can mimic alcohol, though the Intoxilyzer 9000’s infrared spectroscopy is designed to minimize this.
• Calibration and Maintenance: The instrument must be calibrated with a dry gas ethanol standard (target value 0.080 g/210L) and inspected quarterly. Non-compliance can invalidate results.

These limitations provide fertile ground for challenging test results in court, especially if the operator failed to follow protocol or the instrument wasn’t properly maintained.

Operating the Intoxilyzer 9000: What Can Go Wrong?

The manual details the operational principles of the Intoxilyzer 9000, including its question sequence, test sequence, and report fields. Understanding these processes is crucial for identifying potential errors:

Functional Overview

The Intoxilyzer 9000 uses infrared spectroscopy to detect ethanol molecules in a breath sample. It performs a series of diagnostic checks and calibration verifications before and after each test to ensure accuracy. The dry gas ethanol standard, stored in 67L tanks, is critical for calibration, and only GBI-approved vendors (CMI, Inc. and ILMO Specialty Gases) should be used.

Test Sequence

The standard test sequence includes:

• Diagnostics: The instrument checks its internal systems.
• Air Blank: Ensures no residual alcohol is present in the chamber.
• First Breath Sample: The subject provides a deep lung breath sample.
• Dry Gas Calibration Check: Verifies the instrument’s accuracy against the 0.080 g/210L standard.
• Second Air Blank: Clears the chamber.
• Second Breath Sample: A second sample is taken, ideally within 0.020 g/210L of the first.
• Final Air Blank: Ensures the chamber is clear.

The manual notes that two adequate breath samples are required, and a third sample is inadmissible under O.C.G.A. § 40-6-392(a)(1)(B) (Davis v. State, 237 Ga. App. 817, 517 SE2d 87 (1999)). If the samples differ by more than 0.020, the test is invalid, and a new test may be attempted.

Common Errors and Display Messages

The manual lists common instrument messages that can indicate issues, such as:

• “Insufficient Sample”: The subject didn’t provide enough breath, which may be deemed a refusal (Komala v. State, 237 Ga. App. 236, 515 SE2d 185 (1999) but see Elliott v. State, 305 Ga. 179, 824 Se2d 265 (2019)(breath refusal is not admissible as a violation of the Ga Const. right not to incriminate self by compelled acts)).
• “Interference Detected”: Possible presence of interfering substances.
• “Calibration Error”: The dry gas check failed, indicating a potential instrument issue.

As an attorney, I often investigate these messages to determine if they reflect operator error, instrument malfunction, or procedural violations.

Your Rights During a DUI Stop

The manual provides valuable insights into the DUI investigation process, which can help you protect your rights:

The Three Phases of a DUI Investigation

• Vehicle in Motion: Officers need reasonable articulable suspicion (e.g., traffic violation, weaving) to stop a vehicle (Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781 (2009)).
• Personal Contact: Officers assess the driver’s demeanor, odor of alcohol, and physical signs. You’re not required to participate in field sobriety tests, and refusal cannot be the sole basis for arrest.
• Pre-arrest Screening: Officers use tools like field sobriety tests and portable breath testers (PBTs) to establish probable cause. PBT results can only confirm the presence of alcohol, not its concentration.

Arrest and Implied Consent

Once arrested, you’ll be read the Implied Consent Notice. You have the right to refuse testing, but refusal can lead to a license suspension and be used as evidence of guilt (Miles v. State, 236 Ga. App. 632, 513 SE2d 39 (1999) but see Elliott v. State, 305 Ga. 179, 824 Se2d 265 (2019)). If you consent, you’re entitled to an independent test at your expense, and officers must make reasonable efforts to accommodate this request (Ritter v. State, 306 Ga. App. 689, 703 SE2d 8 (2010)). Cases like (Joel v. State 245 Ga. App. 750, 538 SE2d 847 (2000)) show that denying a reasonable independent test request can lead to suppression of the state’s test results.

Miranda Rights

The manual clarifies that Miranda warnings are not required before reading the Implied Consent Notice or conducting field sobriety tests unless you’re “in custody” (Scanlon v. State, 237 Ga. App. 362, 514 SE2d 876 (1999)). However, post-arrest statements require Miranda warnings to be admissible (Price v. State, 269 Ga. 222, 498 SE2d 262 (1998), but see, State v. Turnquest, 305 Ga. 758, 827 SE2d 865 (2019)(holding that Price is overruled to the extent it requires Miranda warnings prior to performing incriminating acts under the Ga. Const. of 1983, Art. I, Sec. I, Par. XVI.).

Challenging Intoxilyzer 9000 Results in Court

The manual’s detailed requirements for admissible breath tests provide multiple avenues for defense:

• Operator Certification: The operator must have a valid permit (Prindle v. State, 240 Ga. App. 461, 523 SE2d 44 (1999)).
• Instrument Maintenance: The Intoxilyzer 9000 must be in good working order, with quarterly inspections and valid calibration checks (Renschen v. State, 225 Ga. App. 678, 484 SE2d 753 (1997)).
• Procedural Compliance: The test must follow GBI Rule 92-3, including proper observation periods and correct Implied Consent Notice timing (State v. Austell, 285 Ga. App. 18, 645 SE2d 550 (2007)).
• Sample Validity: Two samples within 0.020 g/210L are required, and any interference or insufficient samples can invalidate the test (Chamberlain v. State, 246 Ga. App. 423, 541 SE2d 64 (2000)).
• Voluntary Consent: Consent must be free and voluntary, not coerced (Williams v. State, 296 Ga. 817, 771 SE2d 373 (2015)). There must be actual consent under the 4th Amendment and not just implied consent.

Additionally, the manual’s discussion of alcohol pharmacokinetics and testing limitations allows us to challenge the accuracy of results. For example, a rising BAC at the time of testing or the presence of mouth alcohol can skew readings, and these issues can be explored through expert testimony.

Recent Court Decisions Impacting DUI Defense

The manual’s appendix (pages 62-72) highlights key court decisions that shape DUI defense strategies:

• Refusals as Evidence: Refusal to submit to testing is admissible and creates an inference of guilt (Miles v. State, 236 Ga. App. 632, 513 SE2d 39 (1999) but see Elliott v. State, 305 Ga. 179, 824 Se2d 265 (2019)(breath refusal is not admissible as a violation of the Ga Const. right not to incriminate self by compelled acts)). However, refusal alone isn’t enough to prove “less safe” DUI without other evidence of impairment (Shaheed v. The State, 270 Ga. App. 709, 607 SE2d 897 (2004)).
• Independent Tests: Officers must reasonably accommodate independent test requests, and failure to do so can lead to suppression (State v. Henry, 312 Ga. 632, 864 SE2d 415 (2021), Ladow v. State, 256 Ga. App. 726, 569 SE2d 572 (2002)).
• Coerced Consent: Coercing a suspect to submit to testing (e.g., threatening a warrant) can lead to suppression (Collier v. State, 279 Ga. 316, 612 SE2d 281 (2005)).
• Instrument Reliability: Certificates of inspection can be admissible without the inspector’s testimony (Smith v. The State,338 Ga. App. 635, 791 SE2d 418(2016)), noting that there was no objection that the inspection certificates were not provided in discovery but evidence of malfunction or operator error can challenge the weight of results (Laseter v. State, 294 GA. App. 12, 668 SE2d 495(2008)).

These rulings underscore the importance of working with an experienced DUI attorney who can leverage case law to your advantage.

Practical Tips for Drivers

If you’re stopped for suspected DUI in Georgia, keep these tips in mind:

• Stay Calm and Polite: Cooperate with the officer but avoid volunteering unnecessary information.
• Know Your Rights: You’re not obligated to perform field sobriety tests or take a PBT. Refusal may have consequences, but it can limit evidence against you.
• Request an Independent Test: If you submit to the state’s test, immediately request an independent blood test at a facility of your choice.
• Document Everything: Note the officer’s actions, the timing of the Implied Consent Notice, and any issues with the testing process.
• Contact an Attorney ASAP: An experienced DUI lawyer can review the case for procedural errors, challenge test results, and protect your license.

Why Choose George Creal for Your DUI Defense?

At George Creal, Attorney at Law, we understand the science, law, and procedures behind the Intoxilyzer 9000 and Georgia’s DUI laws. With over 25 years of experience, we’ve successfully defended countless clients by:

• Challenging the validity of breath test results.
• Identifying violations of Implied Consent protocols.
• Leveraging court precedents to suppress evidence.
• Negotiating favorable outcomes, from reduced charges to dismissals.

Our firm is committed to protecting your rights and minimizing the impact of a DUI charge on your life. If you’re facing a DUI in Georgia, don’t leave your future to chance—contact us today for a free consultation.

The Intoxilyzer 9000 Georgia Operator’s Refresher Training Manual is more than just a guide for law enforcement; it’s a roadmap for understanding the strengths and vulnerabilities of breath alcohol testing in DUI cases. By grasping the legal, scientific, and operational aspects of the Intoxilyzer 9000, you can better navigate the complexities of a DUI charge. Whether it’s challenging the accuracy of a test, questioning the officer’s procedures, or asserting your right to an independent test, knowledge is power.

Contact George Creal for Expert DUI Defense

If you or a loved one is facing a DUI charge in Georgia, don’t hesitate to reach out to George Creal, Attorney at Law. We’re here to fight for you, using every tool at our disposal to secure the best possible outcome. Visit our website at www.georgecreal.com or call us at (404) 333-0706 to schedule your consultation today.

Disclaimer

This blog post is for informational purposes only and does not constitute legal advice. Every DUI case is unique, and outcomes depend on specific circumstances. Consult a qualified attorney for personalized guidance..

Sources: Intoxilyzer 9000 Georgia Operator’s Refresher Training Manual, 2017 Revision, Georgia Bureau of Investigation Division of Forensic Sciences.

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