Validity of DUI test device at issue
A public defender's office has gone to court disputing the most widely used breath testing machine's accuracy.
By CHRIS TISCH
Published December 3, 2005
LARGO - The Pinellas-Pasco Public Defender's Office is challenging the accuracy of the machines that test the blood-alcohol count of suspected drunken drivers.
The machines' accuracy has been contested in several other Florida counties with mixed results. In at least two counties, court rulings have blocked the use of breath test results against DUI defendants.
In several other counties, including Hillsborough, judges have denied the challenge.
How the situation plays out in Pinellas could put hundreds of DUI prosecutions in jeopardy, said Public Defender Bob Dillinger.
Dillinger's office will be seeking what's known as the machine's "source code," the computer language that makes the device work. But the manufacturer of the Intoxilyzer 5000, which most if not all local police agencies use, won't turn the code over because they say it is a trade secret.
At a hearing scheduled for Dec. 16, Dillinger's office will ask County Judge Donald Horrox to order the company, CMI Inc. of Kentucky to turn over the codes.
If Horrox issues that order, Dillinger predicts the company will not comply. The company has not complied with orders in other counties either.
If the company doesn't provide the codes, the results from the breath test will be inadmissible, hampering many DUI cases and forcing prosecutors to lessen some of the charges to reckless driving or to drop them altogether.
Prosecutors could proceed without the machine results.
Dillinger said the decision also could give some people convicted of DUI-manslaughter an avenue of appeal, though most of those cases involve actual blood samples and not breath tests.
CMI Inc. officials could not be reached for comment Friday.
The Florida Department of Law Enforcement oversees the use the Intoxilyzer machines statewide. But the agency has no right to ask the company to turn over the source codes, said Laura Barfield, the FDLE's alcohol testing program manager.
"It's a trade secret. It would be like asking Bill Gates for the source code to his Microsoft Office," said Barfield, who has testified on the machines' accuracy in several Florida counties. "It's not our position to tell them to hand it over."
Barfield says the recent surge in challenges of the machine's accuracy is just a trick being used by defense attorneys who know the company won't reveal the source code.
"It's a huge ploy by the defense community," Barfield said. "The reason the defense community wants the source code is they know it can't be provided."
She said police departments or FDLE personnel test the machines every month using samples of a known blood-alcohol count. If the machine reads them accurately, it's working. If not, the machine is removed.
"You don't need the source code to determine if the instrument is working correctly," Barfield said.
Barfield said she likely will testify on behalf of the state in Pinellas County, offering that the machines are accurate.
Dillinger said his office also will summon experts who will question the accuracy of the machines. He said the monthly tests on the machines often show them to be slightly off.
"We have to ensure that these machines that really control people's freedoms and have a huge impact on their lives are accurate," he said. "I think we need to make sure the system is reliable."