Expired machine jeopardizes DUI arrests in Wheeling

An expired part on a piece of Wheeling police equipment could lead to dozens of DUI cases being reconsidered, officials have confirmed.

The ethanol tank on the Intoxilyzer — the machine used by police to measure drivers' blood alcohol content — was expired for about five months before the expiration was discovered in April. The Illinois State Police are in charge of inspecting the machines.

Wheeling Deputy Police Chief John Teevans said the machines use the ethanol tank as a control. When a person suspected of being intoxicated blows into the machine, the Intoxilyzer measures his or her level of intoxication against the control sample. The tank expires about every two years.

Wheeling's Intoxilyzer tank expired in November 2011, but it remained in use through April 2012. Officials said they were unaware of the expiration because the machine, for unknown reasons, was displaying an incorrect expiration date of June 24, 2019.

According to a letter the Cook County State's Attorney's office sent to the 46 people arrested on DUI charges in Wheeling between November and April, Wheeling police do not have access to the tank or the Intoxilyzer, which must be opened with a key that the Wheeling Police Department does not have.

“The Wheeling Police Department was unaware that the tank expired on November 17, 2011, and continued to run Breath Alcohol Tests on the instrument after that date,” the letter states.

When state police inspected the device during a spot check on April 17, they learned of the expired part and the instrument was immediately taken out of service, Teevans said.

The notice of disclosure from the state's attorney's office says that the instrument passed accuracy checks that were run on the first of every month from April 1, 2010 through April 1, 2012.

After finding out about the problem, Wheeling police sent the machine to its manufacturer and the company's testing showed it was still functioning properly even past the expiration date, Teevans said. Because of that, he said he is confident that the arrests made after the expiration date will stand.

Local defense lawyers aren't so sure.

Arlington Heights attorney Thomas Glasglow said that aside from the legal fees, court costs and judicial hassles that come with a DUI, there also is a stigma and possible job or personal problems that result from an arrest. That's especially troubling if that arrest was based on a faulty machine, he said.

“The machine says so, so it must be true. Except for the fact that sometimes machines break,” Glasglow said.

He blamed the problem on a change in 2010 that allows inspections of the machines by computer rather than a live person — aside from intermittent checks such as the one that caught the expired machine five months late.

Attorney Steven Block said he recently filed a motion to withdraw the guilty plea of a client who was charged with DUI based on evidence from the Wheeling Intoxilyzer. His client was arrested on Nov. 21, four days after the expiration date.

“Maybe you can't trust the computer if now there's information that's erroneous,” Block said. “I haven't seen anything like this in 12 years.”

Teevans said he does not as yet know of others trying to overturn their arrests or convictions.

The State's Attorney's office said Wheeling is the only suburb where they have encountered this problem so far.

“I think this poses a problem for DUIs as a whole,” Glasglow said. “This will open them up to having their arrests overturned and it could have been easily avoided by having a person check the device more often.”