FDLE says alcohol tester was accurate

Officials say the breath-testing machine in question was correct and 43 drunken driving arrests still stand.

By CHRIS TISCH
© St. Petersburg Times
published December 15, 2001

LARGO -- Last month, the Largo Police Department acknowledged making a mistake with its intoxilyzer machine, which measures alcohol in drunken driving suspects' blood.

The error could have put five months of drunken driving arrests -- 43 total -- in jeopardy.

But a Florida Department of Law Enforcement official said this week that, despite the mistake, the machine was working fine and the drunken driving arrests are solid.

Laura Barfield, manager of the FDLE's alcohol testing office, told the State Attorney's Office that she will testify to that fact in court if local defense attorneys try to get any of Largo's drunken driving charges thrown out.

"I let them know that I would be available to testify if they needed it," Barfield, who works in Tallahassee, said Friday.

How Largo's intoxilyzer accuracy came into question is a complicated story about how police test the machine with a liquid that mimics the breath of someone who has been drinking.

The error occurred this summer, when the company that produces the liquid mistakenly shipped a noncertified batch to the department. The liquid had been certified by the company, but Florida, like many states, requires that the state certify the liquid as well to ensure its accuracy.

But Largo's intoxilyzer inspector didn't double-check the shipment, so he didn't notice that the liquid had not been state-certified. Five months went by before an FDLE official discovered the mistake.

So each time the officer tested the machine over that time, he was doing so with an uncertified liquid, which not only means the testing is not certified, but could mean that tests administered to drunken driving suspects would be open to question.

But several factors make it certain that the intoxilyzer was working properly, Barfield said.

For one, the machine was working perfectly both before and after the uncertified liquid was used, which means it also was working perfectly in between those times, Barfield said.

"The instrument won't fix itself," she said.

The machine also is tested with three liquids that mimic three levels of alcohol in the blood. Though one of the liquids was not certified, the other two were, which Barfield said means the machine was accurate the whole time.

As a third bit of proof, Barfield has tested liquid taken from the same batch that Largo used. She found it to be in compliance with state rules.

It remains unclear if any defense attorneys will challenge the Largo tests, or if prosecutors would call on Barfield if they did.

"It really comes down to if defense attorneys are going to challenge the cases," said Scott Rosenwasser, assistant county court director for the State Attorney's Office. "Then based on this information, we could go in and argue there was still substantial compliance with the rules."

There were 63 people arrested on drunken driving charges during the five-month period, 20 of whom refused to take the test. Of the remaining 43, more than 30 have already entered a plea.

Rosenwasser said he wasn't aware of any defense attorneys filing motions to suppress the tests.

Largo attorney John Trevena said he thinks defense attorneys still can challenge the tests.

"The analogy I would make is if a police officer made an arrest but was not certified at the time of the arrest, but was certified a week later, that doesn't mean the arrest is now lawful," he said. "It's irrelevant if it met the standard. It's whether it's certified."

Rosenwasser said if defense attorneys try to get the tests tossed out, prosecutors will consider each case individually in deciding whether to go forward.

"I don't know how it's going to play out," he said. "I don't know if you can fix something after the fact."

Largo police, meanwhile, said part of their policy is to now check their shipments of the liquid to ensure it is state-certified.

"We're going to pay a little bit more attention to detail as far as the bottles we get in," police spokesman Mac McMullen said.

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