A Win for DUI Defense Lawyers in Florida

October 17, 2014
A Win for DUI Defense Lawyers in Florida

A panel of judges in Orange County recently granted DUI defense attorneys access to the software behind the Intoxilyzer 800. The device is used by Florida law enforcement agencies when determining blood-alcohol levels of suspected DUI drivers.

Intoxilyzer 800 Used to Test Suspected DUI Drivers

The panel cited “significant and continued anomalies,” in their ruling of releasing the software information to the DUI attorneys. Since becoming the Florida-sanctioned DUI device in March 2006, the popular tool has been subjected to frequent litigation. Since its release, DUI defense attorneys have argued to gain greater access to the tool’s software and programming that governs its functionality. The final decision came down recently, when the seven-judge panel ruled in the attorneys’ favor.

“Magic Black Box”

The judges, who refer to the Intoxilyzer  800 as a “magic black box,” noted strange results that were obtained in the testing process. One such “strange result” was an Intoxilyzer that had been used by the Seminole County Sheriff’s Office reported one suspected DUI driver had blown 15 liters of breath. This amount, as the judges noted, is “not humanly possible.” While the judges acknowledged that a “high percentage” of tests found no anomalies, they felt that was not good enough: “That the Intoxilyzer 8000 mostly works is an insufficient response when a citizen’s liberty is at risk.” Their ruling stated DUI defendants are owed “effective access” to the software, and that should include all past versions, within 21 days of the order.

What Next?

It’s unclear what happens next.

“Its really, honestly, up in the air right now,” said Stuart Hyman, one of the defense lawyers in the case.

Kentucky based CMI, Inc., manufacturer of the Intoxilyzer, has long resisted releasing what it considers to be it’s “trade secret,” the technology behind the device. General counsel at CMI, Alan Triggs, said the company has allowed attorneys to inspect the code since 2007.

Defense expert, Harley Myler, testified CMI had indeed let him run tests on its technology, but then refused to let him leave with the notes he had made, thus leaving him unable to write a report or testify in court.

Assistant State Attorney Will Jay says CMI, going forward, has agreed to let defense experts take notes — and leave with them. Jay went on to say that, “Prosecutors have not been able to admit Intoxilyzer 8000 tests as evidence in DUI cases in Orange County since 2008, the result of a ‘stalemate’ during the litigation of the source code issue.”

According to Lyle Mazin, another defense lawyer involved in the case, the primary issue is,”getting to the bottom of what’s going on inside the ‘magical black box.'” He went on to say, “The defendant has a right to know how that machine works. It’s only fair.” Mazin expects DUI defendants might see better plea offers as a result of this ruling.

 

Source: Orlando Sentinel, Judges side with defense attorneys in fight over DUI device, September 29, 2014

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