BISMARCK — An audit of the North Dakota Attorney General's Office released on Wednesday, Sept. 22, found that 34 of almost 9,000 DUI tests analyzed over a two-year period were conducted using faulty or expired canisters that produced unreliable results.

The State Auditor's Office says the 34 tests are invalid and can be dismissed in a court of law.

The State Crime Laboratory, a branch of the attorney general's office, maintains breath alcohol testing devices around the state that have gas canisters in them to ensure the devices are calibrated and functioning correctly, according to an audit report from the State Auditor's Office.

However, 27 of the 8,925 tests analyzed were conducted on devices that had expired canisters, and are therefore considered "errored tests," the audit report said. Seven tests were conducted with canisters that were not certified, which also resulted in errored tests.

Newsletter signup for email alerts

"It’s important to follow the DUI testing guidelines so each person tested is fairly evaluated against the same standard,” State Auditor Joshua Gallion said in a statement. “We’re happy to hear that after our audit, the Attorney General’s Office is in the process of updating their breath alcohol testing devices so these errors shouldn’t occur again."

However, Attorney General Wayne Stenehjem said Wednesday that Gallion's audit "missed critical facts."

Stenehjem said the State Crime Lab doesn't perform DUI tests, a responsibility that instead falls on local law enforcement. The lab provides the testing devices and training on how to operate them, and "there is no excuse" for law enforcement to be using an unauthorized or expired canister, Stenehjem said in a statement.

The breath alcohol testing devices analyzed by the auditor's office are not the ones used during field sobriety tests done when a suspected drunken driver is pulled over. The devices audited, known as the Intoxilyzer 8000, are for conducting tests that will be used as evidence in court if a person is accused of driving under the influence, the audit report said.

During the last legislative session, lawmakers approved funding to replace the Intoxilyzer 8000 with a newer model that doesn't permit tests to be run on expired canisters, Stenehjem said.

The ramifications of using expired or uncertified gas canisters in the testing devices could mean "offenders potentially being able to get out of a DUI on a technicality," the auditor's office said.

There are 121 Intoxilyzer 8000s throughout the state where law enforcement officers perform tests with the breath alcohol devices. The audit found the 34 DUI tests that used expired or unapproved canisters were conducted in the following locations, not necessarily by the police departments there:

Breath alcohol tests run on expired canisters within a two-year period up to June 30, 2020:

  • West Fargo — 12
  • Fort Yates — 4
  • New Town — 4
  • Fargo — 2
  • Carrington — 2
  • Tioga — 1
  • Grafton — 1
  • Jamestown — 1

Breath alcohol tests run on unapproved canisters within a two-year period up to June 30, 2020:

  • Valley City — 3
  • Bowman — 3
  • Stanley — 1

The Forum asked for the names of the individuals involved in the 34 invalid DUI tests, but the auditor's office declined to release them saying there may be pending or additional criminal charges filed and ongoing or future investigations into those cases.

Emily Dalzell, an auditor's office spokesperson, said it's not within the office's jurisdiction to notify people impacted by the 34 invalid tests. That responsibility falls on individual attorneys and the court system, she said.

To ensure the devices are working correctly, the auditor's office recommended that a State Crime Lab official direct inspectors to ensure the canisters in North Dakota's 121 devices are approved and not expired, the audit report said.

However, the attorney general's office firmly dissented against the recommendation, saying the practice of ensuring the reliability of the devices is already in place.

"We adamantly disagree with this recommendation," the attorney general's office said in the audit report. "The corrective actions suggested by the State Auditor ... have been in place for several years."

The auditor's office disagreed, saying that some DUI tests were done with canisters up to 153 days after their expiration date, which indicates the recommendation has not been in place for several years.

"The State Crime Lab has not taken action to implement preventative procedures to ensure unapproved or expired gas canisters are not used to perform breath alcohol tests," the auditor's office said.

Stenehjem said on Wednesday in the spring his office notified 21 agencies that the cylinders in their devices would be expiring.

"At the conclusion of our audit, we met with the Auditor to attempt to explain the critical facts which he missed in his audit," Stenehjem said. "Other than this inaccurate assessment, the Auditor found no problems with the operations of the Office of Attorney General."