Thursday, November 6, 2008

DUI tests by Intoxilyzer thrown out by Judge

California DUI criminal defense attorneys at the San Diego County DUI Law Center of and California drunk driving criminal defense lawyers at are told today that a Florida judge has thrown out the alcohol breath-test results of seven DUI defendants because law enforcement did not inspect the equipment after a repair.

After an Intoxilyzer 8000 machine was repaired, authorities failed to inspect it, as required by FDLE rules, for six months.The ruling could pave the way to invalidating about 100 other breath test results from South County DUI defendants, because authorities did not inspect the equipment for six months after the March repair.

"It's for seven people, but every breath test on that machine, between those dates, is no good," said Venice defense attorney Robert Harrison, who fought for the ruling.

The error means prosecutors will not be able to tell juries about the defendants' blood-alcohol content, considered the most powerful piece of evidence against drunken drivers.

Drivers are considered impaired if their blood-alcohol content, or BAC, is more than 0.08 percent. Drivers blow into a tube and the Intoxilyzer 8000 analyzes their breath to determine a BAC.

The seven defendants in this case registered BACs as high as 0.23 percent, or nearly three times the intoxicated level.

But the Florida Department of Law Enforcement rules say a repaired Intoxilyzer 8000 has to be inspected before it can be used to collect evidence against a driver.

This machine, number 1346, had a problem with its dry gas regulator, which is needed for the control tests before and after the driver's breath test.

Without the dry gas regulator, the machine will not work. FDLE replaced the dry gas regulator on March 5, but did not conduct an inspection.

Because of that, the breath tests violated the state's implied consent law, which requires licensed drivers to consent to a breath test if stopped under suspicion of DUI, County Judge Phyllis Galen ruled.

Prosecutors and law enforcement argued that replacing the regulator was maintenance, not a repair, and therefore did not require an official inspection.

Galen's ruling called that argument "unreasonable."

The Sheriff's Office, which maintains the equipment, said it disagreed with the ruling and hopes prosecutors will appeal the decision.

The BAC is not the only evidence against drunken drivers, so the ruling does not mean the charges will be dropped automatically.

Harrison has long led the fight against alcohol breath-test machines in Sarasota County. He said fines against CMI Inc., the Kentucky-based manufacturer of the Intoxilyzers, have now surpassed $2 million in a fight over access to the computer code inside the machines.

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