Law Firm Protects your rights
June 20, 2008, Orlando, FL
BREATH TEST RESULTS INADMISSIBLE IN ORANGE COUNTY
Court Applies Ruling Only To Current And Future Clients Of
The Three Firms That Argued The Case
Today, all 10 of the County Court Judges in Orange County, in a unanimous decision, changed the way a DUI can be prosecuted in Orange County, severely limiting the State’s ability to introduce Breath test results. In their decision, the judges ordered the State of Florida to provide Defense Counsel with the Source Code for the Intoxilyzer 8000, and to prove that the Intoxilyzer 8000 was properly listed on the US Department of Transportation’s conforming products list, or lose the ability to enter the results into evidence in criminal proceedings through Florida’s Implied Consent Law.
On behalf of over 70 combined clients, David Katz, of Katz and Hidock, P.A., and two other local attorneys presented testimony and other evidence to the judges over the course of 3 days. During the hearings, experts in Breath Alcohol Testing from all over the country came to Orlando to testify for both the Defense and the Prosecution. In the end the Judges reserved ruling on many of the issues presented by the Defense until such a time as their main concerns had been addressed.
Unlike in prior attempts by other attorneys to discredit the Intoxilyzer, the Court found that “the Defendants in the cases at bar did make a ‘particularized showing’ of anomalies in the operation of the Intoxilyzer 8000 stemming from the computer control/software in use in [the] instrument.” Further, the Court found that the State had “been unable to produce a single witness… who might have a comprehension of the software and source code and could give testimony about it.” Finally, the court stated that the testimony and evidence clearly established FDLE and Ms. Barfield (the head of the Alcohol Testing Program in Florida) have little or no comprehension of the computer software or source code at work in the instrument of the modifications made to the computer software or source code since the approval of the Intoxilyzer 8000.
Additionally, the Judges were concerned that the Breath Test Instrument (Intoxilyzer 8000) in use in Florida does not appear on the United States Department of Transportation Conforming Products list. Under current FDLE regulations, in order to be evaluated for approval for use as an evidential Breath test instrument in the State of Florida, the machine must appear on the US DOT’s Conforming Products list. However, when the CMI Intoxilyzer 8000 was added to the conforming products list in October of 2003, the published list specifically stated that the machine approved was a CMI Intoxilyzer 8000 which analyzed breath samples using the 3.4 and 9 micron bands. Without getting into a technical discussion of why this is important, the Court noted that the Defendants produced evidence that the instruments in use in Florida came with various specifications and parts lists and other materials indicating micron bands of 3.0, 3.4, and 3.476 and of 9.0, 9.3, 9.376, and 9.4 microns. The Court found that if the Instrument used micron bands different than 3.4 and 9.0 microns than the Intoxilyzer 8000 in use in Florida “does not appear on the US DOT CPL and therefore can NOT be an approved breath testing instrument in Florida entitled to the implied consent statutes.
Finally, the Orange County Judges noted with concern that “there were changes to the breath hose, tall feet, power supply coils, instrument case, and the undocumented replacement of a screw in the purge valve with a screw of a different size because of issues with the purge feature of the Instrument.” The Judges further pointed out that the documentation of the changes did not mention the changing of the screw, to which Ms. Barfield responded, “Its only a screw”.
The Orange County Judges unanimously agreed that the “combination of the FDLE rule 11D-8-003(5) rule changes, the above listed issues with the reliability of the Intoxilyzer 8000 and CMI’s refusal to provide schematics, software, source code, release notes, and other documentation required to provide insight to the Court regarding the instrument’s approval status and method of operation leads the Court to wonder if CMI may be hiding some defect or shortcoming of the instrument, which places the defense in the position of being denied evidence material to their defense and in the unenviable position of proving something to the Court without being given the tools necessary to o so. This flies in the face of the rights and guarantees of criminal defendants provided by the Florida Rules of Criminal Procedure, Florida Statutes, Florida Administrative Rules and even the Florida Constitution.
In the end the Judges Unanimously ruled that the only way the State would be allowed to introduced the results of an Intoxilyzer 8000 breath test would be if the State was to lay the traditional predicates for Scientific testing and that the State would not be entitled to the presumptions and shortened predicate found under Florida’s Implied Consent Statute. The State of Florida has appealed this decision.
Many of the Judges involved in the decision are only allowing the clients of Katz and Hidock, P.A. and the two other firms which actually argued these issues at the hearings to reap the benefits of this ruling. They are telling the other attorneys with DUI cases to write their own motions, retain their own experts, and argue their own motions denying other attorney’s DUI clients the benefits of this ruling.
Katz & Hidock is currently involved in similar hearings in Osceola, and Lake County, with plans to expand the hearings into Brevard, Volusia, and Seminole County when the right case presents itself.
