THE SAGA OF THE UNAPPROVED BREATH
TESTS IN OKLAHOMA: THE GUTH 2100 SIMULATOR
 

You have no doubt heard on television OR read in the newspapers about some device or machine involved in breath testing in Oklahoma which is unapproved and, as a result, 100's - if not 1,000's - of breath tests are being "kicked out".  My office has prepared this page to help the public understand these stories.

Although the press "picked-up" on this topic at the end of July, 2005 when a second attorney filed a lawsuit against the State, the issue was not new.  I am the attorney who discovered this error in the Rules that the State made.  This discovery was made months ago.  And since that time, untold numbers of persons have enjoyed the benefit of this discovery by avoiding the revocation of their driver's licenses AND/OR the suppression of the test result from evidence in their criminal case, whether our office represented them or not.

To better understand what this is ALL about, and more importantly, whether it affects your Oklahoma DUI case, I have prepared the following explanation.

BACKGROUND OF THE "UPROAR"

Although some of the news reports have labeled the "problem" as the breath test machine or Intoxilyzer 5000, that is not what is at issue.  It is the SIMULATOR device used in breath testing here in Oklahoma that has caused these problems. Specifically, it is the Guth 2100 and/or Guth 210021 simulators (pictured above) which are at the bottom of all of this problem. The simulators are connected to an Intoxilyzer 5000 (link courtesy of Charles L. Sifers). 

In breath testing, the simulator is a device which sits to the right hand side of a breath testing machine. It is used to verify the reliability of a breath test on an Intoxilyzer 5000. Several different simulators, by different manufacturers, are available to use for this function.

A simulator looks sort of like a mason jar with a large metal top. It has a thermometer and a paddle that extends down from the top into the jar. When filled with simulator solution (water and a preset amount of alcohol), the paddle turns the solution and the solution is heated. It is the 3rd and 4th results on every breath test affidavit in a DUI arrest. The 3rd result is the "known value" or what is supposed to be in the solution. The 4th result is what the breath test device read that solution to be. A reading of plus or minus .01% of the known value is pronounced as an acceptable test.

This device is a required part of every breath test in Oklahoma. No breath test is admissible if such a "simulator solution" check is not done on EVERY test. Like the Intoxilyzer 5000-D OR any other breath testing machine, every simulator must be approved by Oklahoma's Board of Tests for Alcohol & Drug Influence for the test to be admissible. If the simulator is NOT listed in the Rules of the Board of Tests as an approved device, any test given to a person is inadmissible as evidence in his criminal case or part of a DUI, AND/OR the revocation of his driver's license.

In 2003, the Oklahoma Civil Court of Appeals ruled that any breath test using a simulator called the "Guth 2100" was inadmissible. See Manning v. Oklahoma ex rel. Department of Public Safety, 2003 OK CIV APP 57, 71 P3d 527; McCown v. Oklahoma ex rel. Department of Public Safety, 2003 OK CIV APP 66, 74 P3d 623. The Board of Tests for Alcohol and Drug Influence (BOT) had not, up to that point, approved this device for use in breath tests in the state, as required by statute. Consequently, 100's - if not 1,000's - of breath tests were suppressed and/or driver's licenses were returned in 2003 to persons arrested for DUI. However, it was only those cases in which the lawyer had argued this issue and preserved the case which saw the licenses returned. Any case in which the person DID NOT ask for a hearing, AND/OR INSTEAD, just got a "work permit" or modification, still had the license revoked. These persons still have this on their driving records. Part of at least ONE of the lawsuits referenced below which resulted after my discovery requests setting aside THESE revocations as well and clearing those persons' records, too.

REACTION BY THE STATE IN 2003

After the cases above were decided in 2003, the Board of Tests for Alcohol and Drug Influence ("BOT") removed these 2100 devices from use and replaced them with OTHER approved simulators. It THEN got an rule passed and signed by the Governor to include this device - along with another simulator that had NOT been litigated, and very few of us ever heard of, called the Guth 210021 - in the Rule providing for approved simulator devices. This rule became effective June 5, 2003. The BOT put all of these devices BACK into operation after the effective date of this emergency rule. As a result, it appeared that the Manning and McCown cases and the benefit they provided in the defense of DUI's was "dead".

Or so it appeared.

This rule was an emergency rule. As a result, it was only effective through July 14, 2004. It was to die - AND DID CEASE TO HAVE ANY FORCE AND EFFECT - on July 15, 2004. Knowing that this was the case, the BOT had to re-submit it to make it permanent. Well, the BOT did do that and the Governor signed it May 26, 2004, with an effective date of July 11, 2004. However, when it was published in the Oklahoma Register, the Guth 2100 simulator was NO LONGER listed in this rule. The rule lists the Guth 210021 TWICE. The 2100 was completely missing. Supposedly, the rule which the Governor signed on May 26, 2004, DID have the 2100 listed therein. However, that was NOT what was delivered to the Secretary of State by the BOT for publication. By statute, that which is PUBLISHED is governing, not what was INTENDED to be published. As a result, the Guth 2100 simulator was NOT been an approved device in breath testing in the State of Oklahoma, effective July 11, 2004.

HOW WE GOT WHERE WE ARE NOW

On February 13, 2005 while preparing for a Jury Trial in Oklahoma County District Court the next day, I looked on-line at the specific BOT rule on simulators. I could not believe what I read. I thought that it must be a typographical error on the Secretary of State's web page. This had to be wrong. We secured a certified copy of the Oklahoma Register in question the next morning, prior to the motions hearing, from the Secretary of State. It was not a typo. The Guth 2100 was NOT in the rule. I included this argument in my motion to suppress the breath test in that case (along with a few other reasons) and the Judge in the case granted it. I was the first attorney to use this current argument in a DUI case in Oklahoma.

The next week, our office filed Motions to Suppress the breath test in every criminal court where this simulator was used in every DUI case we had. In some cases, we argued these Motions. Our office has not lost a single one of these Motions on these grounds. In most cases, the argument was made to the prosecutor without arguing (or EVEN filing) the Motion before a Judge, and negotiations were done as if the test was ALREADY taken out of evidence. Consequently, every case that our office has had where this simulator was used during this time period has had the benefit of this argument. While removing the breath test from evidence DOES NOT eliminate the criminal part of a DUI case, in almost every single case, the outcome of these cases was better than it would have been but for this problem with the test. Ever since my discovery, I have been using this for the benefit of all my clients who took a test with one of these devices involved.

This news spread quickly. I wrote an article for The Gauntlet, the Law Journal for The Oklahoma Criminal Defense Lawyers Association, explaining how this could be used by all attorneys in their cases. (Read the article here). Other attorneys began to re-assert this argument in licenses hearings AND motions to suppress. The Department of Public Safety threw in the towel. It set aside all Guth 2100 cases which were - and are - in their hearing and appeal pipeline but a couple. Hundreds - if not thousands - of licenses have been - or will be - returned. Again, however, those cases which had ALREADY been revoked STILL did not see the benefit of this discovery and decision of the DPS. They stayed revoked and their license records still reflect this DUI-caused license revocation.

The couple of cases that the DPS did NOT give in on were tried before District Courts with the argument that these devices WERE approved (see below). Both of these cases are NOW before Oklahoma's appellate courts waiting decision.

THE STATE'S NEXT MOVE

 

The State's NEXT move was the same as in 2003: replace the simulators with older models which WERE approved. However, it then did something hard to understand.

The BOT argues that the Guth 210021 and the Guth 2100 simulators are the same devices. It claimed that listing the 210021 in the Rule is - by some magic - listing the 2100. Guth Labs, the maker of these simulators, formerly called this device a 210021 up to 1999. However, from that point on, it was called the 2100. Every single one of these simulators owned by the State of Oklahoma was purchased after Guth Labs re-labeled this device as the 2100. Each purchase order will show that. In an effort to "save" these simulators, the BOT had Guth Labs send it REPLACEMENT face plates for each of these devices.

The BOT reacted by removing these Guth 2100 simulators and replacing them for a brief period of time with others which are listed within the Rule. During this brief period of time, the BOT replaced the faceplates of the 2100's with faceplates that said "Guth 210021" and put them BACK into operation around the State. By the end of April, 2005, although some police departments stayed with the other approved replacement simulators, almost EVERY 2100 simulator was back beside it's Intoxilyzer and being used in breath tests.

The DPS started recognizing these altered simulators as approved and began revoking the driver's licenses of persons arrested for DUI. Many criminal courts, also, ruled the same way on Motions to Suppress.

On July 8, 2005, the BOT Rule "fixing" this problem - again - went into effect. As of that date the Guth 2100 simulator is an approved device. All tests given TODAY using either of these devices are being viewed as "approved" by the State.

 
LAWSUITS FILED

In March, 2005, an Oklahoma City attorney filed a class action lawsuit against the State to compel it to restore the driver's licenses and driving records of all persons affected during the year that these machines were used. Little was heard in the press about this lawsuit. At the end of July, 2005, another attorney filed a second one and it was from THAT lawsuit that the situation became "news" in the press. The latest on these lawsuits is that the Judge in the older of the two has ruled that she wants to see what the Appellate Court of Oklahoma decides (see above) about this issue. Those appellate decisions will have wide sweeping effect!

 

MORE "FALL-OUT"

Prior to this second lawsuit, the Legal Division of the DPS had a different person take over as the Head thereof. This new "top lawyer" for the Legal Division had apparently never agreed with the BOT's decision to switch out these faceplates. Once he took over, he directed that ALL tests with EITHER a 2100 and /or a 210021 device used must be set aside. That meant that every person who was tested on a machine with EITHER device should have his license returned to him, whether he asked for a hearing or not! However, and this is important to know, the vast majority of the District Attorneys of the State DO NOT share the DPS lawyer's opinion. DUI cases are proceeding as normal in every court!

After the filing of this second lawsuit, the Director of the Board of Tests, the person who claimed responsibility for the error that I found in February, was yanked up before the Board. In a unanimous decision by the Board, he was fired.

 

WHAT MIGHT THIS MEAN TO YOU?

Concerning YOUR Driver's License                      Concerning YOUR Criminal Case

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