Expired DUI tests found in audit of Attorney General could invalidate some DUI cases

Published: Sep. 22, 2021 at 11:58 AM CDT
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BISMARCK, N.D. (KFYR) - Officers routinely ask individuals suspected of driving under the influence to take a breathalyzer test. But some DUI test results might not be accurate.

State Auditors report they found expired, or unapproved, DUI tests in a review of the Attorney General’s Office. These findings open the door for the test results to not be admissible as evidence in DUI cases.

“Many times, it is taken as one piece of evidence in a larger picture, but it is an important part of a DUI case,” said Assistant Burleigh County State’s Attorney Dennis Ingold.

County and city law enforcement conduct DUI tests and follow guidelines to ensure the tests are accurate.

“There’s an approved method that must be followed to get the tests into court, and in this small percentage of cases, [auditors report] that method wasn’t followed because the gas cylinders were expired,” added Ingold.

An auditor reviewed 8,925 tests between 2018 and 2020 and said 34 Intoxolizer 8000′s had expired gas cannisters, which are used to keep the tests calibrated.

Attorney General Wayne Stenehjem rejected the auditor’s findings stating: “We have had in place for many years a process to direct the field inspectors to ensure the gas cylinders are approved and replaced prior to the expiration date.”

Auditors reported expired and unapproved tests in 11 cities in North Dakota including Fort Yates, New Town and Fargo.

Stenehjem’s statement continued: “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.”

Other evidence can still lead to a DUI conviction without breathalyzer results.

“And it’s important to note, the machines are still reliable given that the correct cylinders are used, not expired,” added Ingold.

The crime report from the Attorney General indicates there were 4,175 DUI arrests in North Dakota last year.

The Attorney General’s office reports that they are replacing their DUI testing devices to Intoxilizer 900s which will not permit tests to run beyond the date of expiration.

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