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January 4, 2010 Tavares, FL
BREATH TEST RESULTS INADMISSIBLE IN LAKE COUNTY
One of two County Court Judges in Lake County ruled that the results of Breath Test administered to Defendants accused of DUI will not be admissible unless or until the State of Florida provides Defendant’s with materials pertinent to their defense, including copies of the software found in the Intoxilyzer 8000 which controls the instruments functions and provides access to the instruments for inspection by Defense Experts.
A written ruling was released on December 4, 2009, however, the State had 30 days to comply with the Judge’s order or to appeal the decision. The January 3rd deadline passed without the state providing the required materials or filing an appeal of the ruling.
The Judge made clear in her ruling that the Defense had raised sufficient questions about the accuracy and reliability of the results from the Intoxilyzer 8000 to make the computer software material to the Defense of DUI cases.
The hearings were argued by David Katz of Katz & Phillips, P.A. which maintains offices in Tavares and Orlando Florida and by Orlando Attorney Stuart Hyman on behalf of their clients and the clients of two other firms.
The hearings on this issue, which began in June of 2008 concluded in July 2009, with a motion for rehearing held in October, 2009. In their closing argument, the State Attorney’s Office argued that the Defense was on a fishing expedition, wanting the requested materials so they could try to find something wrong with the function of the Instrument. Further, the State argued that the Defendant’s had not shown a valid reason to need to inspect the instruments, but that they were again on a fishing expedition to try to find something wrong.
David Katz on behalf of the Defense countered that the Defendants had provided hundreds of examples, from real breath tests used as evidence throughout the state, including tests given in Lake County of inaccurate readings, unexplainable anomalies and erratic unexplained behavior of the breath test instrument. He pointed out to the court that, “we were not on a fishing expedition to find out if anything was wrong with the instrument, for that had already been shown with the hundreds of unexplainable breath test results that the Defense had provided to the court, but that we were trying to find out what specifically caused the instrument to perform with such unexpected results and if any results from the Intoxilyzer 8000 could be relied on.”
The ruling on the Breath Test results is the first such ruling in the fifth Judicial circuit which covers, Lake, Sumter, Citrus and Marion Counties. Courts in Orange, and Osceola counties have made similar rulings within the last year, excluding the breath test results throughout both counties. Hearings continue in Seminole County and throughout the State on this issue.
