Last Month a Judge in Sarasota County ruled that a breath test machine was unreliable and excluded the results of an unknown number of breath tests, forcing prosecutors to rely on other evidence of impairment to attempt to prove these cases. This development stemmed from breath volumes provided by defendants that in some cases were medically impossible to produce, as reported in the following article.
Additionally, in Collier County Florida’s DUI law is being challenged as Unconstitutional. The argument stems from a Defendants inability to exercise their 6th Amendment right to confront the accuser, namely the Intoxilyzer 8000 by CMI Inc., the only instrument currently approved by the Florida Department of Law Enforcement to measure breath samples after an arrest.
The article explains that DUI Expert Thomas Workman hired in the Venice cases to analyze the state’s data on Florida’s 400 breath test machines said, “We don’t allow secret science in any area of the law except for DUI prosecutions.”
In DUI cases, defendants face penalties including loss of drivers licenses, fines, probation and jail time. Refusing to take a breath test results in a license suspension. “I really don’t think it’s too much to ask for this information. I can’t think of any good reason why this stuff should be a secret,” Workman said.
Analyzing the Florida Department of Law Enforcement’s data on the machines, Workman said he found 40 percent of them were not properly calibrated when agency inspectors checked them after the problems surfaced in January. The problem was measuring the amount of air blown into them by DUI suspects. An average person has a lung capacity of less than 5 liters. More than 1.1 liters is needed for the machine to properly analyze air to determine the amount of alcohol in a person’s body, Workman said.
However, the Intoxilyzer in the Venice jail recorded more than 12 liters for one DUI defendant, Workman said. “That’s just not possible,” he said. A machine analyzed at the Collier County Jail recorded more than 11 liters for a woman charged with DUI in June 2010, said Robert Harrison, the Sarasota attorney who hired Workman.
However, this went unnoticed by the woman and her attorney. She pleaded no contest, was fined and put on probation. That machine in Collier was recalibrated in June.
The machines in the Collier jail are routinely inspected by the state and the manufacturer, said sheriff’s spokeswoman Michelle Batten. “Each time they are challenged by a DUI defense team, we are and have always been ruled to be in compliance,” she said.
Officials for Intoxilyzer manufacturer CMI Inc. could not be reached for comment.
However, “we stand by the integrity of these instruments,” said FDLE spokeswoman Heather Smith. She said two measurements are always taken to ensure accurate results.
The amount of air, Smith said, doesn’t affect the results as long as at least 1.1 liters are recorded to get an accurate measurement. But she said FDLE is recalibrating the machines as a quality control measure.
The fate of Florida’s DUI law will likely be litigated to the Florida Supreme Court to determine if it’s Unconstitutional and this may take years. Until then Defense Attorneys will continue to challenge the Intoxilyzer 8000 and its results. If you or your family member have been arrested of DUI, contact our office, the Mastrogiovanni Law Firm for a consultation concerning your rights and how we can help you with your case.
About the author: Michael L. Mastrogiovanni is a partner at the Mastrogiovanni Law Firm and practices in greater Tampa Bay Area. He has handled numerous DUI cases and trials and is available to speak with you. Ask to speak with Michael for a free consultation concerning your rights and what can be done for you.