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Judge Peyton Hyslop rules that the county jail's breath tests didn't measure up to state code. Prosecutors appeal.
By JAMIE JONES, Times Staff Writer
© St. Petersburg Times, published October 24, 2002
BROOKSVILLE -- An appellate panel may have reversed County Judge Peyton Hyslop's ruling on holding DUI suspects this week, but the debate over drunken driving cases in Hernando County is far from over.
The latest issue is whether hundreds of defendants were given Breathalyzer tests on equipment that was not officially approved by the state.
Prosecutors recently appealed an Oct. 10 ruling by Hyslop that said the Breathalyzer test used at the Hernando County Jail did not pass the state's administrative code for testing procedures.
The Florida Department of Law Enforcement, which regulates Breathalyzers across the state, disagrees with Hyslop's ruling and said that the tests are reliable. FDLE has loaned the county a new machine until the matter is resolved.
Tampa lawyer Eilam Isaak argued that the state had used a type of Breathalyzer that was not specifically tested during a 1993 approval study.
The state had tested the machine, a 64 Series of the Intoxilyzer 5000, with 2- and 6-inch pressure switches, which measure whether a person blows with enough force to get air from their lungs.
However, the machine used in Hernando County had a 4-inch switch.
The FDLE said the state does not approve every breath machine, but lists types of acceptable machines. Also, the FDLE said it believes that the machine should work with any of the various-sized switches.
Laura Barfield, alcohol testing program manager with FDLE, said the machines are inspected monthly to make sure they work properly.
Hyslop did not toss the breath tests. So far, he has simply barred prosecutors from using a legal shortcut that allows them to submit the results into evidence. Instead, a prosecutor must now call witnesses and prove that the test was conducted properly.
Hyslop was expected to make another ruling on Nov. 7 as to whether any of the Breathalyzer evidence should be admitted into court. However, he will wait for the ruling by the appellate court.
Assistant State Attorney Bill Catto said he believes the machine was properly used, and if Hyslop throws out the readings, Catto will appeal. The FDLE could not say Wednesday how long the old Breathalyzer had been used in Hernando County, but Catto said hundreds of cases could be affected.
The issue is the latest in a series of questions surrounding DUI cases in Hernando County in recent years.
On Tuesday, an appellate court overturned one of Hyslop's rulings about holding DUI suspects in jail without bail.
Hyslop had ruled that holding people in jail for eight hours without allowing them to post bail violated their constitutional rights. He has given defendants less than the mandated DUI sentences, saying they should not be further punished with fines or community service.
The appellate panel disagreed and sent 122 cases back to his court. Defendants will be allowed to withdraw any pleas they have made and go to trial, or Hyslop can sentence them in accordance with state guidelines. First offenders could receive a $250 fine and 50 hours of community service.
-- Jamie Jones covers law enforcement and courts in Hernando County and can be reached at 754-6114. Send e-mail to jjones@sptimes.com.