For those of you following the saga to obtain the Source Code for Florida’s Intoxilyzer 8000, CMI announced on June 3, 2011 through an affidavit filed in Florida that it does NOT have the Source Code for the only instrument on the DOT conforming products list or the only instrument evaluated and approved for use in Florida.

CMI has also confirmed that the instrument on the conforming products list is not the same as the instrument evaluated and approved in Florida. The extent of the difference cannot be known even to CMI because it would require “a lot of research” by inspecting the source code and now that source code no longer exist.

CMI just sent me their proposed protective order. One thing jumps out:

The examination under the Selph Order, a copy of which is attached hereto as Exhibit “1,” took place on June 9-10, 2011, at CMI headquarters in Owensboro, Kentucky.  Dr. Myler, who was also defendant Selph’s expert, participated in the examination.  The materials specified in the Selph Order were made available during the examination, except for that portion of the software revision histories for software revisions 8100.13 and earlier revisions, which was not available since CMI has no remaining engineering notes pertaining to those earlier revisions.

“Welcome to Kentucky. You’re here to see the source code? Come right in. Oh, by the way… um… we don’t exactly have it.” So what prompted this little disclosure? Maybe the fact that Orlando DUI Attorney Stuart Hyman called their bluff and sent Professor Myler to Kentucky?

What happened to the software revisions for 8100.13 and earlier? That means that the Florida version of the software approved by FDLE was not preserved (meaning destroyed). In fact, it means that for every attorney in every state using the Intoxilyzer 8000 that the software for the only machine placed on the DOT “conforming products” list was destroyed. Either they never had it, they had it and then lost it, or CMI’s dog ate it. I like the wording of it – we looked at the “remaining” engineering notes. Remaining from what or who?

Final Nail in CMI’s Coffin?

Professor Harley R. Myler testified in our cases a year ago that keeping the source code and revision histories was standard in the industry. CMI must have gone to some trouble to lose it. Of course, Sarasota DUI Attorney Robert Harrison has really paved the way to make this little disclosure the final nail in the coffin after his Landrum decision.

How many hours have Florida DUI Attorneys spent fighting this issue just to find out that they don’t even have it. No wonder they didn’t respond to Robert Harrison’s subpoena duces tecum in the Landrum case or any of the subpoenas that followed.

Why didn’t they just say that up front? Anyone that thought CMI was acting in good faith must be a little confused by it all. I predicted this a year ago – read my blog post – What if the punch line is CMI doesn’t have the source code?

Intoxilyzer 8000 “Source Code” Litigation in Tampa, Hillsborough County, FL

We are really looking forward to our upcoming (Part III) source code hearing in Tampa which are scheduled for July 15, 2011. The timing of our hearing could not be better. It has been a eighteen month battle that may soon be over. The issues have been constantly changing as CMI has been forced to admit that it doesn’t have the needed information. Slowly but surely we are learning that CMI will never comply with the various court orders throughout this State and other states regarding the Intoxilyzer 8000. CMI is under a subpoena to bring whatever is left of the source code or Florida specific software. We are also scheduled to hear their previously filed motion to quash. CMI’s attorneys have promised to file additional motions to quash in our cases.

Other DUI attorneys throughout the State have been extremely helpful in keeping us up to date on recent developments. Different counties throughout the State have handled the issue differently. But with this new development, the issue is becoming crystal clear. The Intoxilyzer 8000 machines approved in Florida is not the same machine included on the DOT conforming products list. All traces of that “evaluation software” has been now been destroyed (at least as far as CMI is concerned). Therefore, we will never know anything about that machine on the conforming products list.  Since Florida law requires that the FDLE can only approve a machine on the conforming products list, the machines used in Florida were not in substantial compliance with those rules. The lack of substantial compliance means the breath test results must be suppressed.

As the game keeps changing, we welcome any new information that can be provided by other DUI attorneys in Florida or other states fighting a similar battle. Fighting the individual cases is cost prohibitive. But as criminal defense attorneys begin to work together we have started to gain momentum.