Court-Martial Trial Practice Blog
According to the MJ ruling in a case I just completed in Korea, the Intoxilyzer SD2 is reliable if administered in accordance with its instruction manual and the applicable AR. However, at Camp Casey, Korea, they are not admissible. That is because the MP's do not conduct proper calibrations in accordance with the test instructions and AR on how Army breath tests are to be conducted. For the military judge this failure constitutes a major departure from the regulation and not a minor failure.
Note: this is a Joint regulation applicable to all of the Services:
AR 190-5; OPNAVINST 11200.5; MCO 5110.1; AFI 31-218(I)
The relevant provision is AR 190-5, sec. 4-12(b)(2)(b), which states:
Verify calibration and proper operation by using a control sample immediately before the test (emphasis added).
At an Article 39(a), UCMJ, session on a Houser motion, the MP testified that he did not know who did or how to calibrate for altitude, as required by the manufacturers instruction. Although, as noted by the military judge, such a failure likely enured to the benefit of the accused in this case. The MP also testified that he did not do a calibration test required by the regulation, and that they are never done at Camp Casey. It was on this second basis that the MJ suppressed the PBT reading of 0.20.
The MJ did indicate that he was aware that Yongson Garrison PMO does follow the instructions and the AR. It is not clear that a lot of cases will or should be thrown out at Camp Casey until new procedures are implemented. Camp Casey "Military Justice" relies more on blood testing than the Intoxilyzer-SD2. But whether PMO follows the AR in doing calibrations would seem to be an important item of discovery in any alcohol related offense where a PBT is used. If they don't start doing calibrations, and it's a case at Camp Casey, Korea, then I would hope the MJ would continue to rule as he did in our case. An NJP refusal is not an automatic response. This would only work if the sole evidence of an alcohol level is the PBT. If there is a FST failure or blood test, then the prosecution will still have evidence to prosecute and likely get a conviction.
I'll be catching up on some posts now this case is over. Quite a bit has been happening out there relevant to trial practitioners.