A recent ten county judge en banc proceeding results in an important decision in State v. Adkins, et al., 48-2008-CT-673-E (County Court in Orange County, FL 2008).
During the hearing, the court heard testimony about serious problems with the Intoxilyzer 8000, including unapproved “modifications” made to the machine and the mysterious number of “purge failure” which calls into question the reliability of the breath test machines.
Although the Adkins decision failed to find the machine were “unapproved” under Florida law, the decision did find as follows:
So that the remedy is clear, the Court is not compelling CMI, the State of Florida, or FDLE to disclose the source code, release notes and supporting documents; however, if the code, notes, and supporting documents are not provided, then the defendants have been denied material evidence in support of their defense that the instrument is not an approved test as required by the Implied Consent statute.
If the defense is denied this evidence then the proper remedy is to prohibit the State from having the benefit of the Implied Consent statute.
Thus, the State would be denied the benefits of Section 316.1934, Florida Statutes, which would gives them the presumption of impairment and the shortened predicate for admissibility of the test results under subsection (5).
This decision opens the door for further litigation to prevent the use of the Intoxilyzer 8000 until the source code is revealed, which could result in thousands of breath test results being inadmissible at trial.
More DUI Attorneys across Florida are ramping up efforts to show the flaws with the Intoxilyzer 8000.
As judges across the state learn more about specific problems an the efforts by FDLE to hid those problems, more and more judges are beginning to opening question whether the Intoxilyzer 8000 should really be considered an “approved” machine at all.
At the Sammis Law Firm we were not one of the attorneys of record for State v. Adkins, et al., 48-2008-CT-673-E.
We have, however, filed similar motions which are currently pending, to obtain the source code for numerous cases for DUI in Hillsborough County, FL.
Contact us to see how this litigation may effect your DUI case in Tampa or one of the surrounding counties.
Call 813-250-0500.
Tampa DUI Attorney Blog 
2 Comments
thank you! I really liked this post on DUI source code!
Contrary to popular belief, a breathalyzer does not directly measure blood alcohol. Instead, it reads the alcohol in the person’s breath and uses a computer program to extrapolate the breath alcohol reading into a blood alcohol reading. Consequently, it seems to me that this computer program (the “source code”) should be made available to DUI defense lawyers.
It is axiomatic that discovery rules require the disclosure or relevant evidence or that which would lead to such evidence. Here, there can be little dispute that the programming of the breathalyzer is discoverable. This information should be produced, perhaps subject to a protective order, to allow defense experts to determine whether the breathalyzer accurately measures blood alcohol.
It should be of no consequence that a third party possesses the source code. The breathalyzer is being used by trhe state in DUI prosecutions. The state, therefore, should be required to obtain the source code as part of its contract with CMI, the manufacturer of the Intoxalyzer.
Attorney Brian E. Simoneau