Problems With Florida's Intoxilyzer Breath Test Device May Affect Your DUI
Issues with the Intoxilyzer 8000
David Katz, a Florida attorney whose practice focuses in the areas of DUI and criminal defense, says that there are two major issues with the Intoxilyzer 8000 - 1) whether it was ever properly approved for use, and 2) whether it works correctly. He explained each and what his firm, in particular, is doing about it:
- Approval issue. The first issue is whether or not the Intoxilyzer 8000 was ever properly approved for use in the state of Florida. In Florida, there is a requirement that before they even evaluate an instrument, the Florida Department of Law Enforcement (FDLE), through their alcohol testing program, can only evaluate instruments that are listed on the United States Department of Transportation's Conforming Products List. On the United States Department of Transportation's Conforming Products List, it lists the CMI Intoxilyzer 8000, and it specifically says, 'Which analyzes breath samples using the 3.4- and 9-micron bandwidth.'
Well, the Intoxilyzer in Florida does not use the 3.4- and 9-micron bandwidth. In fact, I don't think there is an Intoxilyzer anywhere in the United States that uses those bandwidths. The rule is clear; if it's not on the DOT Conforming Products List, it cannot be used in Florida. The judges [who heard Katz's arguments about the issue] were particularly troubled by that in Orange County, although they didn't rule on that because they were saving that and the ruling on all of our other motions until the time that the state provides us with the source [computer] code.
- Operational issue. There have been many cases in the last few years where the courts have ruled that the defense is not entitled to the source code for the Intoxilyzer. But in those cases, the defendants and their counsel never made a showing that the source code was material or a showing that anything was wrong with the Intoxilyzer. The court found that we made a particularized showing of anomalies in the operation of the Intoxilyzer throughout the state, and particularly stemming from the software that controls the instrument. The court also found that the state was unable to produce any witnesses who understood how the machine worked.
What they said is 'Look, based on the prior case law, we're not ordering the state to produce the source code. But if they don't, we're not going to let the results of the breath test in through the implied consent statute.' They can still get the breath results in if they can lay what's called the traditional Bender predicate [a way to admit evidence]. But I can't figure out any way they could do that without either giving us the source code or bringing in an expert from the manufacturer of the instrument to explain how it works, because the Bender predicate basically says that they have to prove that it is accurate and reliable scientifically.
How these issues benefit Katz's clients
Katz says the result of these issues is that the state is either agreeing that the case is going forward without the breath test or the case is being abated pending the results of the appeal on his decision. He explained, "That always works to the favor of the defendant anyway. I can tell you as a former prosecutor, when cases come back from appeal, you've already got cases on your docket and you get 200 old cases that are now being thrown on your lap that are two or three years old that you know nothing about, where the officers and witnesses have moved, retired or forgotten about, you end up making sweet offers on those cases or they just go away. So if they want to let them get old, that's fine with us."
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