Lawyers doubt breath test's accuracy
Claiming a machine that tests driver's breath may be flawed, defense attorneys want its maker to release computer codes so they can be evaluated.
By CHRIS TISCH
Published December 17, 2005
LARGO - Pinellas defense attorneys began challenging breath test results Friday by using a tactic that has gotten drunken driving cases tossed out in three other Florida counties.
During a hearing Friday, defense attorneys argued the machine that tests the breath of drivers suspected of driving under the influence may be inaccurate. Worse, they say, the company that makes the machine won't hand over computer codes that would help defense attorneys evaluate the machine's accuracy.
The company says those codes are a trade secret. The State Attorney's Office says defense attorneys don't need the codes because the machines are tested for accuracy every month.
County Judge Donald Horrox will hear more testimony Jan. 27, then will decide whether to order the manufacturer, Kentucky-based CMI Inc., to release the codes.
The company has refused similar court orders from judges in Seminole and Sarasota counties, prompting judges to toss out breath test results in DUI cases there. Drivers can be prosecuted without the breath tests, but it can be more difficult.
If Horrox should order CMI to turn over the codes and they - as expected - refuse, hundreds of Pinellas DUI prosecutions would be in jeopardy.
Judges in several counties, including Hillsborough, Volusia, Clay and Brevard, have rejected the defense argument. Judges have split in Orange County, according to defense attorneys.
The case is being argued by the Public Defender's Office for Wade Licari, who was arrested Jan. 30. The machine said his blood-alcohol count was almost twice the level at which Florida law presumes impairment.
About two dozen other DUI defendants have been added to the motion. One had a blood-alcohol count of .26, more than three times the legal limit.
Orlando defense attorney Rigo Armas, who has challenged the breath machines for years and is helping the Public Defender's Office in this case, told Horrox that attorneys have a duty to inspect every piece of evidence against their client.
"That's what we're dealing with here is a mystical black box that cannot be confronted and cannot be questioned," Armas said.
But prosecutors said CMI is protected from turning over the code because of its value as a trade secret.