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Breathalyzyer Challenge in Florida Could Eventually Impact D.C. Cases

by | Feb 28, 2013

The Florida Supreme Court is currently weighing a request by DUI defense attorneys in that state to compel the Kentucky-based manufacturer of the Intoxilyzer 8000 breath machine to hand over evidence showing how the device calculates blood alcohol measurements.

Our D.C. DUI defense attorneys know this case could be important because, while it may not have an immediate or direct impact on us here, a successful win would mean a better working knowledge of how these machines work. In turn, that’s going to mean more chances for us to challenge its reliability in court.

D.C. police only just started back up again with breathalyzer use, following a two-year suspension of the program amid findings that he machines were spitting back readings that were erroneously skewed too high. Hundreds of pending DUI cases were tossed.

Now that the machines are back – and D.C. DUI laws are tougher than ever – we have a real concern that these machines still are not as reliable as police and prosecutors purport.

In the Florida case, three defendants argue that they need access to the software in order to prove that they are inaccurate. As the D.C. cases showed, inaccuracy is not a wild, shot-in-the-dark claim. However, the problem for the supreme court is that:

  1. The manufacturer of the device is not a party to the case, even though the machines are central to it;
  2. The manufacturer is out-of-state, and the makers argue that for this reason, the court in Florida can’t force it to hand over anything.

Attorneys for the manufacturer say the data requested by the defendants is a trade secret. Even if that were true (and we don’t believe it is), does that outweigh liberty and justice for the literally tens of thousands who are accused of serious criminal charges each year in this country using these devices?

In hearing oral arguments earlier this month, the justices indicated they were hesitant to force any company to hand over documents or information across state lines, even if doing so made good logical sense.

What they could alternatively do is impose strict, daily fines on the actual agent in the case – law enforcement – until they agree to turn over the information. Of course, it’s information they don’t have and they would have to get it from the company. If the company refuses to hand it over, Florida prosecutors may be inclined to drop those pending cases, while law enforcement may decline to continue using devices they can’t defend in court.

But that’s only if the court sides with the defendants.

Another possibility is that the state legislature could pass some sort of law or the state’s department of law enforcement could adopt an administrative rule that would require out-of-state manufacturers of such devices to disclose the information being requested here.

All of this may be irrelevant in cases where blood tests have become the favored piece of evidence. But as we in D.C. well know, use of the breathalyzer is still extremely common – and troubling.

If you are facing DUI charges in D.C., contact the Scrofano Law, PC at 202-765-3175.