A panel of the Kansas Court of Appeals recently held that officers may not rely solely on  an Intoxilyzer 9000’s mouth alcohol detector to confirm that no residual alcohol remains in a  suspect’s mouth at the end of a deprivation period. 

In 2021, a PBT reading of 0.109 resulted in the arrest of Ronnie Hickles. At the station the arresting officer began the Intoxilyzer 9000 protocol. Hickles was instructed to swish his  mouth with water, the testing officer confirmed that Hickles’ mouth was empty, a timer was set  for the 20-minute deprivation period, and Hickles was told that putting anything into his mouth,  burping, or hard coughing may well bring alcohol into his mouth and compromise the test.  

During the deprivation period Hickles burped twice and though there was some  discussion about the burps, the testing officer did nothing further. The breath test was  administered, the Intoxilyzer 9000 did not indicate any residual alcohol in Hickles’ mouth, and  the test result was 0.107. The testing officer commented that the decrease from the PBT to the  Intoxilyzer 9000 was not as much as the officer had anticipated. KDOR suspended Hickles’ drivers license for a year, a district court later agreed with KDOR, and Hickles appealed. 

This week, the Court of Appeals reversed the suspension. The main question before the  Court was whether the testing officer “substantially complied” with the KDOR governing  protocol when the officer did not respond to Hickles’ multiple burbs, instead simply relying on  the Intoxilyzer 9000’s internal residual alcohol alert warning system. The judges agreed 3-0 that  the officer did not. The officer should have done more. In other cases officers had verbally  inquired of the test subject whether anything had entered their mouth or if uncertain restarted the  protocol and deprivation period. 

The panel stated: “As it stands, the KDHE’s protocol requires investigating officers to  keep the testing subject in their immediate presence and deprive him or her of alcohol for the 20- minute period immediately preceding the breath test. The fact the Intoxilyzer 9000 did not alert  to the presence of mouth alcohol is of no moment and is therefore insufficient to demonstrate that  [the officer] substantially complied with the KDHE protocol.” 

Maybe KDOR will ask the Kansas Supreme Court to weigh in (but a 3-0 panel vote  below can frustrate that effort), or maybe KDHE can adjust their protocol, or maybe KDOR  could find and litigate a case to allow for a better showing of the accuracy of the Intoxilyzer’s  mouth alcohol alert equipment.  

However, and assuming that none of that can happen: in the case of a suspect that for  whatever reason continues to burp or cough during a deprivation period then the testing officer  should think seriously about seeking a blood search warrant.

~ Colin