Intoxilyzer issues

[Virginian]

DUI defense lawyers challenging widely used breath test machine

MIAMI (AP) -- Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine that determined he was drunk to see whether the test was accurate.

Their strategy paid off.

The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A Seminole County judge tossed out Muldowny's alcohol breath test - a crucial piece of evidence in a DUI case - and the ruling was upheld by an appeals court in 2004.

Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.

"Any piece of equipment that is used to test something in the criminal justice system, the defense attorney has the ability to know how the thing works and subject its fundamental capabilities to review," said Flem Whited III, a Daytona Beach attorney who is a nationally recognized expert on DUI defense.

The Intoxilyzer, manufactured by CMI Inc. of Owensboro, Ky., is the most widely used alcohol breath testing machine in the United States and is involved in the vast majority of these legal challenges. It is used exclusively by law enforcement agencies in 20 states, including Florida, and by at least some police agencies in 20 other states, according to the company.

Most states have "implied consent" laws for motorists requiring DUI suspects to blow into a breath analysis machine if asked to do so by a police officer.

"The breath test is an integral part of any prosecution," said Earl Varn, an assistant state attorney in Sarasota.

In Florida, state law currently considers a breath test is valid if the machine is approved by the Florida Department of Law Enforcement and the person administering the test is qualified to do so. The law also says that a defendant is entitled to "full information concerning the test taken" if such a request is made.

The meaning of that phrase is the key to the DUI challenges in Florida and other states with similar laws.

DUI defense lawyers insist that "full information" means every minute detail about the Intoxilyzer, including the source code used by its computer processor to analyze breath samples, should be subjected to review by expert defense witnesses. Some judges have agreed.

"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," the 5th District Court of Appeal ruled in Muldowny's case, which resulted in his charges being reduced to reckless driving.

Judges in the Florida counties of Manatee, Sarasota, Seminole and Volusia counties are among those who have ruled in recent months that the defense was entitled to the Intoxilyzer's source code to see if the test results are reliable.

But many judges in other counties have ruled the opposite way, including a panel of judges in Palm Beach County that denied challenges Wednesday by 1,500 DUI defendants who sought the source code under state public records laws.

The tactic has led lawmakers to introduce a measure in the Florida Legislature to clarify that such source codes don't have to be produced for DUI defendants.

Last November, a similar challenge in Omaha, Neb., was rejected on grounds that Nebraska did not have the source code. In Rochester, N.Y., a DUI suspect whose lawyer was seeking the source code was convicted of a lesser charge when the technician who maintained the machine was unavailable to testify.

Because CMI has refused to divulge its source code, Florida officials have argued in court that they cannot produce it for DUI defendants. Although most state judges have upheld that view, others have not.

"The state may not wash its hands of its duty to produce this information by claiming that it does not have it," said Volusia County Court Judge Mary Jane Henderson in a December 2005 decision.

FDLE officials say that even if the state had access to the source code it is not necessary to test the validity of the test results. Laura Barfield, alcohol testing program manager at FDLE, said each of the 408 Intoxilyzer 5000s used in Florida - soon to be replaced by the 8000 model - are regularly run through painstaking tests at the state and local levels.

"You don't need the source code to know the machine is providing accurate results," Barfield said.

For its part, CMI said there is no evidence that its Intoxilyzer is inaccurate, noting that a review of 80,000 tests in a 2002 Arizona case produced no evidence of mistakes.

In a written statement provided to The Associated Press, the company said also said the source code is not a crucial element in proving the Intoxilyzer's accuracy and is a proprietary trade secret that could create havoc if computer hackers obtained it.

"Exposure of the source code could not only be detrimental to CMI from a commercial standpoint, but it could also be detrimental to customers of CMI," the company said. "Disclosure of this information could compromise the integrity of test data that is stored in the instrument."

Ultimately, the conflicting decisions around Florida could land the issue before the state Supreme Court. State lawmakers may act before that, however.

A bill making several changes to DUI law sponsored by Rep. Ari Porth, D-Coral Springs, includes a section clarifying that the "full information" about breath tests does not include the "manual, schematics or software" of the breath machine or any information "in the possession of the manufacturer." The bill is moving through House committees and could pass later this year.

Prosecutors such as Varn say if the defense challenges prevail it would mean each DUI breath test could be subjected to exhaustive analysis, forcing the state to do the same.

"We would have to hire an expert to come in and testify in every case to explain the function of the instrument and what the test results mean," Varn said.

But defense lawyers say DUI defendants have the constitutional right to confront their accuser, even if it is a machine.

"If everything is OK and there's nothing to hide, why do they want to change the law?" said Stuart Hyman of Orlando, a leading DUI defense lawyer and Muldowny attorney. "It's ludicrous."

[Indy]

I sure hope the defense attorneys can live with themselves if someone in their family gets killed by a repeat DUI who could have been locked up if they hadn't helped him get off on a technicality.

[hdwideglide95]

There is a lawyer in NC that is trying the same thing. He has bought a intoxilyzer 5000 out of his own pocket to try and defeat it. He is also trying to say that the instrument is unreliable.

[chris2001]

Lawyers are becoming more and more cunning every year. The trouble that we are going to truly have is when the new machine comes to LE agencies. Because it has not been seen yet and the source code for it is also different from the Intox 5000.

[Virginian]

There's no way we'll ever have anything perfect, so these rats will always find a way to get their trash off the hook.

[Indy]

There is a lawyer in NC that is trying the same thing. He has bought a intoxilyzer 5000 out of his own pocket to try and defeat it. He is also trying to say that the instrument is unreliable.

What does he do? Get drunk and test himself? I'm sure that's real reliable.

[Curt581]

The I-5000 is a pretty good machine, but the Intoximeter EC/IR has it beat hands down. No more having to deal with solution temperatures.

As for the attorneys... Fuck 'Em. If they get the breath machines decertified, the police will just switch to all blood tests, which will screw their clients. Tests that would have been slightly under the legal limit will now be slightly over. Around here, a blood test is nearly unimpeachable as long as chain of evidence is followed.

Talk about shooting themselves in the foot.

[TXCharlie]

I was on a week-long Denton County jury trial where a defense attorney was challenging the Intoxilyzer based on the fact that diabetics exhale acetone, which the machine can mistake for alcohol - However the prosecution's expert witnesses pointed out that there's an acetone detector.

Then the defense attorneys suddenly switch gears and started challenging the calibration records - But that failed because it turned out that the defense attorneys' expert witness was the one that actually calibrated it when he worked as a technician!!! Did the defense attorney think the DA wouldn't notice that?

THEN the DA destroyed the credibility of the defense expert witness when it was brought out that the expert witness was fired for improper use of County credit cards for personal purchases, and falsifying his expense reports

If I'd been the Defense Attorney, I'd have used that to discredit the calibration records - but the dumb attorney never even brought that up, so being the "good little juror" that only considers admitted evidence, I voted Guilty. I think the lady got like a year because it turned out to be her 3rd offense (they didn't share that with us until it was all over).

[MisterK]

round here, a blood test is nearly unimpeachable as long as chain of evidence is followed.

Anyone know if there is a religion that is against say needles or "bodily invasion"? Maybe christian scientists?

[Curt581]

If I'd been the Defense Attorney, I'd have used that to discredit the calibration records - but the dumb attorney never even brought that up, so being the "good little juror" that only considers admitted evidence, I voted Guilty. I think the lady got like a year because it turned out to be her 3rd offense (they didn't share that with us until it was all over).

Alright, as a juror, let me ask you this... if the defense attorney had tried to discredit his own expert, would YOU have bought into it?

Would you have voted to acquit based on some knucklehead's employment history exploited by a totally unscrupulous defense attorney?

Bottom line... WAS she guilty?

[Curt581]

Anyone know if there is a religion that is against say needles or "bodily invasion"? Maybe christian scientists?

Many have tried that tactic, but it ultimately fails since refusing for ANY reason is a violation of Implied Consent.

Driving is a privilege, NOT a Right.

[chris2001]

What you will also see is people bitching about paying for the blood test. Because where I work if you want the blood test you pay for it. And they are getting very very expensive to do.

[TXCharlie]

Alright, as a juror, let me ask you this... if the defense attorney had tried to discredit his own expert, would YOU have bought into it?

Would you have voted to acquit based on some knucklehead's employment history exploited by a totally unscrupulous defense attorney?

Bottom line... WAS she guilty?

Hell, no - She was guilty! We saw video of her in the police intake room, she could barely stand upright. The police officer said she was swerving all over the road, she failed the roadside test, and he smelled alcohol on her breath. She even admitted that she'd been drinking at a party, just not very much.

Her BAC came back as .10 as I remember which was barely illegal at the time (now the limit is.08 I think), and that was why they were challenging the calibration - But Texas law doesn't even require an intox measurement to prove DUI - We woulda convicted her without a reading because of her impared driving, video evidence, and the smell test.

The defense attorney never implied that her blood sugar may have been out of balance either, which may have explained her impared driving. That probably means it was normal, or else she woulda told the officer she was having a diabetic attack. Diabetics are keenly aware of those symptoms, and they also know they're not supposed to be drinking - I think the DA got her to admit that she knew alcohol may cause a diabetic attack too, but she drank and drove anyway.
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[chris2001]

Hell, no - She was guilty! We saw video of her in the police intake room, she could barely stand upright. The police officer said she was swerving all over the road, she failed the roadside test, and he smelled alcohol on her breath. She even admitted that she'd been drinking at a party, just not very much.

Her BAC came back as .10 as I remember which was barely illegal at the time (now the limit is.08 I think), and that was why they were challenging the calibration - But Texas law doesn't even require an intox measurement to prove DUI - We woulda convicted her without a reading because of her impared driving, video evidence, and the smell test.

The defense attorney never implied that her blood sugar may have been out of balance either, which may have explained her impared driving. That probably means it was normal, or else she woulda told the officer she was having a diabetic attack. Diabetics are keenly aware of those symptoms, and they also know they're not supposed to be drinking - I think the DA got her to admit that she knew alcohol may cause a diabetic attack too, but she drank and drove anyway.
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Please tell me the officer did not say that on the stand?


The BAC was changed in the last 5 yeards because the Federal Govermant wanted it lowered. You are correct it use to be .10 in all states. And now the talk is that they Federal Goverment wants to lower it to .05.

[TXCharlie]

Please tell me the officer did not say that on the stand? The BAC was changed in the last 5 yeards because the Federal Govermant wanted it lowered. You are correct it use to be .10 in all states. And now the talk is that they Federal Goverment wants to lower it to .05.

I can't remember the exact quote, it's been so long ago, but is there something wrong with him saying that if he did? He coulda said he just smelled it, I don't remember.

Didn't matter to me, she admitted drinking.

[Garda]

Anyone know if there is a religion that is against say needles or "bodily invasion"? Maybe christian scientists?

Surely religion cannot be used as a defence against law? Here you can shove that right up your ass and go down as a refusal. Only a doctor can certify you as being unfit to be tested on medical grounds.

1 other thing, who makes the law? Solicitors and well paid supposedly good ones. Why do they miss so many holes in law?

An example here being theft is illegal but attempted theft is fine. No mention of attempting in the entire criminal law act?!?!

[TXCharlie]

Surely religion cannot be used as a defence against law? Here you can shove that right up your ass and go down as a refusal. Only a doctor can certify you as being unfit to be tested on medical grounds.

We have a little document called a constitution that gurantees against unreasonable search & seizure - wouldn't the police have to get a judge to sign a search warrant to force a blood test? I always thought you could force a breath-o-lyzer but not a blood test.
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[Curt581]

We have a little document called a constitution that gurantees against unreasonable search & seizure - wouldn't the police have to get a judge to sign a search warrant to force a blood test? I always thought you could force a breath-o-lyzer but not a blood test.
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There really is no practical way to 'force' a breath test. If they won't blow, it's pretty damn hard to make them. On the other hand, forced blood draws are fairly easy. The subject only needs to be immobilized.

It used to be that search warrants were required to force a blood test. You'd have to call the on-call D.A., who'd fill out an afidavit and fax it to the duty Judge. Eventually, a telephonic "okay" from the judge was enough, backed up by documentation. These days, that's all unnecessary. Several Supreme Court rulings have classified BAC levels as "diminishing evidence", making them an exception to requiring a warrant.

[TXCharlie]

Several Supreme Court rulings have classified BAC levels as "diminishing evidence", making them an exception to requiring a warrant.

Ahhh - I didn't know that! - Thanks!

[Garda]

I fail to see how taking blood would be searching or seizing anything however there is multiple allowances in most nations for police officers to search and seize items without warrant.

A terry search, isnt that what its called?