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Wellington, Kan. —
Sumner County Attorney Evan Watson says he won’t prosecute based on evidence gathered from Intoxilyzer and law enforcement officials say that needs to change.
An Intoxilyzer machine was recently given to the County to be used to measure breath alcohol. Sheriff’s Department officials say it would save the County money, as well as make it easier to get evidence for DUI cases.
The dismissal of cases isn’t coincidence, Watson readily admits he doesn’t convict based on Intoxilyzer.
“...someone has reported that we are refusing to prosecute Intoxilyzer cases. That is a fact...” said Watson.
Watson says Sumner County Sheriff Gerald Gilkey obtained the Intoxilyzer machine from the Kansas Department of Health and Environment without first talking to him about it.
“He did so without consulting with me and giving me a chance to discover whether or not that’s a good idea or a bad idea for prosecution of cases in the courtroom, now he will, and I admit, he will probably dispute that and say, ‘Well we did give Watson’s office notice. We had a training session, late last year and [Deputy Attorney] Joe Baca came out and we mentioned it to him and he said, ‘Yeah sure, no problem, go ahead we’re right on board, go do it,’” said Watson.
He says Baca disputes saying that and that his acceptance was taken out of context.
Sumner County Sheriff’s Department Capt. Mike Yoder said it was a miscommunication on both sides.
“We had a meeting with the deputy county attorney on an unrelated deal and the Intoxilyzer just came up. There was some discussion on us putting it to use. We assumed that he was going to talk to Evan about it and I think he assumed we were going to do that...it’s no one’s fault and it’s both of our faults,” Yoder said.
Deputies have been put through about 15 hours of training on the device and have started building cases on evidence collected from the machine, only to have those cases thrown out by Watson.
Documents provided by the Sheriff’s Department show dismissal letters from Watson on several occasions. At least three cases from February, March and April have been dismissed because “breath evidence has not been approved” by Watson’s office or there were no blood tests done.
In an affidavit submitted in March, one suspect admitted he had “drank four cocktails and four beers at a bar in Winfield,” had given clues of impairment during field sobriety tests, was over the legal limit on both a preliminary breath test and on the Intoxilyzer machine — however the case was dismissed because “our office is not to consider breath test results as evidence of DUI.”
Watson says he has tried to understand the machine and its evidence, but has run into problems.
“There at the training, the machine malfunctioned. Deputy [Matt] Pickens was there. It was supposed to return an invalid sample error but instead it returned a .049. It wasn’t supposed to do that and the instructors there came over to fuss with the machine...and it did it again. So that did not instill me with confidence in the technology and recently I was informed by Gordon Fell, at Belle Plaine PD that he now has a DUI case where the suspect gave both blood and breath and the breath test result was .079 which is below the legal limit and the blood test was .10 which is considerably above the legal limit,”
Watson says until he knows more about the Intoxilyzer machine and how to prosecute evidence based from it, he won’t prosecute cases based on that evidence.
“At the training, I first visited face to face with the Sheriff and Deputy Yoder. I suggested to Deputy Yoder that until I get the chance to go through the training and consider this further, read the articles to try and understand what the science is and any legal issues involved, I would suggest you guys stick with blood and that for whatever reason was not followed through so cases began to come in with the Intoxilyzer being the sole evidence in the case...and I decided we’re not going to prosecute those until we make a decision on it and to please stick with the blood until we can get this all sorted out so that’s where from sometime in February to the present they have been some Intoxilyzer cases and it’s my understanding that someone who is upset about it, reported it and wants something down about it, but it’s my contention on how evidence is presented in the courtroom. It’s determined by me and I’m happy to visit about it and talk to the officers about it and study the science and that but ultimately you have to do what’s right for the courtroom,” said Watson.
“I feel I have made and continue to make a sincere effort to educate myself and understand the issues. I have gone to the training. I have visited with the Sheriff.... I obtained articles directly from the KDHE, who are the custodians of these machines, reviewed those articles and some of the issues in those articles about Gastroesophageal reflux and different things that are reported to cause an Intoxilyzer to be at variants with the truth of the blood alcohol level,” said Watson.
Watson says he’s not the only district attorney not accepting of the Intoxilyzer technology.
“It’s just not as good as blood in my opinion,” said Watson. “There are a lot of jurisdictions, I’m sure, that do use breath, I think that certainly the larger jurisdictions...maybe it’s just a phenomenon of having such a high volume that you are willing to accept, ‘Hey, whatever we just want to get the cases through the fastest. We don’t really care how accurate they are, just is it faster than blood.’”
As far as being faster, that’s not true, Sedgwick County Sheriff Robert Hinshaw says.
Intoxilyzer makes the testing process faster, but there is still additional paperwork because of it.
“When I started, from the time I stopped a potential DUI until I was walking out of the jail was right at an hour and now it’s a multi-hour process because there are various forms that the arresting officer has to complete with the suspect...and then they either take the test or refuse it, and then that, of course, trips additional paperwork,” said Hinshaw. “The Intoxilyzer is obviously more efficient from the perspective that you don’t have to get with a doctor or phlebotomist to have the blood drawn, it is a much faster way to get officers back on the streets and it’s readily accepted in court...”
Hinshaw says his department has been using some form of breath tests since the 70s. Departmental policy leaves the choice of blood or breath test up to the officer on the case.
State statute says either blood or breath can be submitted as a blood alcohol test, Hinshaw said.
Watson says additional costs, such as a scientist in the courtroom wouldn’t be reimbursed to the County.
“I can’t find one that allows the court to order the defendant to pay back the state of Kansas for anything associated with having a scientist in the courtroom on a breath case,” said Watson.
“Based on the information that I’ve gathered, the reasons for it, what we can expect to see about it, I just think it’s asking for trouble and I’m not inclined to do it,” said Watson. “I try to do what’s best for the courtroom...there’s quite a bit to it, I think it’s a good discussion, I just don’t think it’s what’s best for the courtroom,”
Yoder says the ball is in Watson’s court now.
“...We’ve received the training, it’s an approved method. We would like to be able to use it. I think once the County Attorney’s office gets to the point where they are comfortable with it, maybe understand it better...I think the key to this is for us to sit down, work towards a common goal and continue to use the device,”
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