DPS checks the instrument each 15 days. On November 1, all is well. Subsequently, five tests were run, three of which resulted in guilty pleas.

On November 15, this D's results were: Subject=.089; Reference=.075; Subject=.085.

On November 16 the diagnostic test reflected a malfunction and the instrument was withdrawn from service for repairs.

Does Brady require THIS defendant be apprised of the 11/16 failure?

What about the three who plead guilty, assuming they would not have done so were the results faulty?

Are there not daily remote computer checks? If so, what do those say?

I am not a lawyer but my guess is yes because it is exculpatory and material to guilt.

Is it necessarily, Alex? Or is it only material to the accuracy of the results? A person can still be guilty of DWI even if the results are less than .08, and what if the malfunction was in the defendant's favor (i.e., it read lower than it was supposed to), or what if the mechanical error had nothing to do with the testing process at all, but a paper jam or something else? And there doesn't appear to be any indication that it malfunctioned on the days it was being used, just the day it was tested.

That all being said, I would tend to disclose any problems with the instrument. The "would you want to read this on the front page of the paper" test is a pretty good one to use.

I'm not a lawyer but my guess is instead of figuring out how to keep it under wraps you should pretend to be the defendant and ask yourself "is this something I'd want to know?"

Heck yeah it is!

You can still use those other arguments if (when) the defendant challenges the reliability of the test results. With the reference regeristing only .075 maybe it was pulled from service for reading too low. Isn't there somebody at DPS who can explain the nature of the problem that caused that unit to go out of service on that day?

With all due respect to Mr. Layman, who is a non-prosecutor and AFAIK a non-lawyer, whose real name we do not know but who has been posting on this forum for several years, I would suggest that you obtain Brady advice from peers that are actually lawyers and that you not take legal advice from anonymous citizen posters.

That being said, a very wise prosecutor once said that if you have to ask if something IS Brady material, then it probably is. Why court error and possible unfairness to a defendant? Disclose the information and do so in a manner you can prove up on appeal if this later becomes an issue.

Thanks, people. All of your responses were, well, responses. I lean toward the "if you have to ask, it is Brady stuff" philosophy myself. Some of you have given good reasons why in this particular situation that's not necessarily true.

According to the DPS supervisor who ran the remote test resulting in the repairs, the motor that moves the air from chamber to chamber finally gave out. When the lack of voltage regulation allowed the motor to turn at erratic speeds, or excessive speed, the unit could not find "0", and kicked out the error message. This means that it HAD been able to zero out and calibrate itself, and have enough "confidence" to give a valid result prior to the moment of failure. I asked whether there might be a degree of variance prior to total failure, and the answer was unknown, except that theoretically, so long as it was able to determine "0" within its margin of error, all systems are go.

The current pending defendant is aware of the situation, it having occurred so close to the time of his test. However, the few others that entered guilty pleas may never know about this. I feel we are entitled to rely upon the expert's statement that the results were valid so long as the instrument actually performs the test, because it would not have performed the test unless it could be "confident" it would give a result within the margin of error. Out of an abundance of caution, I have advised the misdemeanor prosecutors to review those files to see if the Intoxilyzer result was actually necessary for a conviction in the cases that plead out.

Sounds like a good result, then. Thanks for the update!