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Court decision on breath-test machine a blow to DUI prosecutions in Florida

Court decision on breath-test machine a blow to DUI prosecutions in Florida

Aisling Swift 

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NAPLES, Fla. - In a major blow to state prosecutors, an appellate panel has upheld a Collier County judge's ruling that prohibits a legal shortcut ensuring quick and easy DUI convictions - forcing them to first outline breath-test maintenance records to prove the machines are accurate and reliable.

This week's ruling involving the Intoxilyzer 8000, Florida's only approved machine, not only affects the 26 defendants in the Collier appeal whose cases involve breath tests, but all pending drunken driving and DUI manslaughter cases within the five-county 20th Judicial Circuit - and thousands more statewide.

Added to a November 2013 Florida Supreme Court ruling that enables defense attorneys to force the Intoxilyzer's manufacturer to turn over its secret source code, the three-judge panel's order makes it more difficult for the state to prove a driver was impaired: Prosecutors can't just show a judge or jury the machine's measurement.

"This is huge for breath test cases," said lead defense attorney Donald Day. "It poses a potential problem for the State Attorney's Office because they're going to have to bring in an expert to show how the machine works. We know from the state of Florida they don't know how it works - and the manufacturer says it's a secret."

"They're not going to be able to hide anything and say 'We don't have to tell you how this works,'" he added. "What the state underestimated is that this judge was an expert."


Day referred to Judge Mike Carr, who was an Alachua County deputy for 13 years, administering breath tests and training others in the machine's operation, before becoming a defense attorney and getting elected as a judge eight years ago.

In his November 2012 ruling, Carr agreed with eight defense attorneys that manufacturer CMI Inc. of Kentucky never reported 17 Intoxilyzer modifications to the National Highway Traffic Safety Administration, as required. He noted the Florida Department of Law Enforcement no longer requires CMI to report changes to the state, compounding the problem.

"This court is extremely concerned that FDLE has given the manufacturer free reign to modify the Intoxilyzer 8000 in any manner they see fit," Carr ruled. "A criminal defendant should not face conviction and possible incarceration based on secret undisclosed evidence."

After Carr's ruling, the highway administration sent the FDLE a letter ordering it to require the machine's manufacturer to inform it of changes.

In affirming that decision, the panel agreed prosecutors must first show scientific evidence to prove machines weren't altered from the highway administration's specifications and were maintained and calibrated.

"The trial court made the correct legal conclusion that FDLE regulations required that the Intoxilyzer 8000 be in continued compliance with NHTSA's model specifications," Lee Circuit Judges John Carlin, Margaret Steinbeck and Edward Volz wrote in an Aug. 18 ruling attorneys received Thursday and Friday.

"We are reviewing the ruling and considering our options," said State Attorney's spokeswoman Samantha Syoen, whose office also covers Hendry, Glades and Charlotte counties.

Day, who represented two motorists, won the appeal of Carr's ruling filed by Assistant State Attorney Brian Mortenson. Defense attorneys Jerry Berry, Michelle Hill, Mark Casassa, Dominico Lucarelli, Joshua Faett, Derek Verderamo and Landon Miller represented the 24 other drivers.

The ruling came after a two-day hearing in 2012 before six Collier judges involving dozens of DUI defendants. Five ruled in favor of the state.

Carr denied a defense motion to suppress the Intoxilyzer readings, but prohibited prosecutors from using the shortcut, the Implied Consent Law, to show a judge or jury the machine's reading. Instead, he required prosecutors to first provide evidence and testimony to prove the machine's accuracy and reliability.

Florida began using the Intoxilyzer 8000 in 2006 after lawyers successfully challenged its predecessor, the Intoxilyzer 5000.

The switch came after a state appellate court in 2004 upheld a Seminole County judge's decision to suppress results of breath tests, agreeing a defense attorney was entitled to technical information CMI brands a "trade secret."

State law considers a breath test valid if the machine is approved by the FDLE and the person administering the test is qualified. The law also says a defendant is entitled to "full information concerning the test taken."

That phrase is key to many DUI challenges in Florida and other states.

Without the test results, judges and juries are left with a law enforcement officer's testimony about how the defendant did on a roadside sobriety test or videotapes of the sobriety tests.

The state Legislature gave the FDLE the authority to approve Intoxilyzer machines statewide and set rules for Implied Consent, which protects motorists from inaccurate and unreliable machines. The rules say only machines on the highway administrations's Conforming Products List will be evaluated.

In his ruling, Carr noted the highway administration requires machines to undergo "rigorous" criteria before being approved. The Intoxilyzer 8000 was placed on its Conforming Products List in 2002.

During the two-day hearing in 2012, defense attorneys presented evidence and testimony to show the machines aren't the same as those approved by the federal government because at least 17 changes were not reported to the NHTSA or FDLE. Carr ruled the evidence was "overwhelming" that CMI chose to ignore federal requirements.

In his appeal brief, Day likened the secretive workings of the machine to Toto pulling back the curtain on the Wizard of Oz, as Dorothy was told, "Pay no attention to the man behind the curtain."
"This appeal echoes a similar refrain, 'Pay no attention to the modifications.' But unlike the movie, the mysteries of the Intoxilyzer 8000 are hidden," Day argued. "The trial court's order only pulls back the curtain on the Intoxilyzer 8000, a bit, to ensure scientific reliability."

In the 26 cases appealed, some of which date back to at least 2011, prosecutors didn't move forward by following Carr's order. Syoen said the state didn't try them because they were on appeal. 

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