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The Miami Herald
February 10, 2006 Friday

DUI device is challenged;
A computerized breath test used by law enforcement across the state is under scrutiny, putting hundreds of drunken-driving cases in jeopardy.

BYLINE: NATALIE P. McNEAL

Florida defense lawyers are trying a new way to defeat drunken-driving charges: attacking the computer program that analyzes the results of breath tests.

Already, hundreds of breath-test results have been thrown out in at least one county. In other cases, DUI charges have been pleaded down to lesser offenses or placed in limbo in four counties because of questions about the accuracy of the breath-test results.

Similar cases are pending in South Florida, including the DUI case against a former Miramar city commissioner whose breath test showed his blood-alcohol level at twice the legal limit.

An attorney for former Miramar City Commissioner Fitzroy Salesman brought up the need to view the computer programming at a court hearing on Thursday.

Breath-test results often are the key piece of evidence in DUI cases, so thousands of cases are potentially at stake, according to court and law-enforcement authorities.

In Florida, 68,625 people were cited for DUI in 2004, the last year figures are available.

The defense lawyers say the device can incorrectly identify materials in the breath sample as alcohol when they are not.

To prove this, defense lawyers throughout Florida have been demanding to see the software ''source code'' from the Intoxilyzer 5000 breath-test device -- used by all Florida law-enforcement agencies that do breath testing.

PROBLEM CREATED
The defense argument creates a problem for law enforcement and prosecutors -- not because anyone has proved that the Intoxilyzer software is faulty but because they can't get their hands on it.

The Intoxilyzer manufacturer, Kentucky-based CMI, refuses to turn over the source code, arguing that it's a trade secret. The source code is the computer language inside the Intoxilyzer 5000 that calculates the alcohol results and instructs the instrument to perform functions.

Some judges are dismissing the breath tests, citing a state law that gives defendants the right to ''full information'' about the tests.

So far, seven Broward judges have refused to buy the argument, but six more are due to hear motions on source code. In Miami-Dade, where several cases are on hold, a hearing is set for March on the necessity of the computer software.

Prosecutors say they can't force the company to give up the information.

DEFENSE CRITICIZED
Law enforcement, prosecutors and anti-drunken-driving advocates say defense lawyers are just grasping at straws, hoping to find some technicality to put drunken drivers back on the highway.

''If the attorneys had their way, there wouldn't be any [Intoxilyzer] test, there would just be more drunk drivers,'' said Broward Sheriff's Office spokesman Jim Leljedal, whose agency uses the Intoxilyzer.

South Florida attorney Carlos Canet wants to use the source-code defense in the DUI case of Salesman. In April, Miramar police stopped Salesman, saying they noticed him speeding, missing two stop signs and driving on the wrong side of the street, according to the police report. Using an Intoxilyzer 5000, police said that Salesman blew more than twice the legal limit, according to the police report.

Canet said the U.S. Constitution gives every defendant the right to confront all of his accusers ``even if it is a machine.''

In Canet's motion, he says that the Intoxilyzer has been unable to distinguish between similar compounds because of flaws within the machine.

''The defense must be permitted to examine and expose these flaws as part of its preparation and challenge of breath-test results,'' Canet says.

Courts elsewhere are grappling with the issue. Judges in Orange, Sarasota, Seminole and Manatee counties have ruled that prosecutors must produce the source code.

CONVICTION APPEALED
Florida's Fifth District Court of Appeal will hear a case involving the Intoxilyzer 5000 source code this year. A Daytona Beach defense attorney is appealing a December conviction in a client's DUI case after the trial judge rejected a request to see the source code.

''In the age of computers, why do we find it odd that someone charged with a crime wants to figure out the way the damn thing works?'' said Flem Whited, the Daytona Beach attorney who filed the appeal.

In Seminole County, judges ruled that the source code should be turned over, and hundreds of breath-test readings were thrown out after prosecutors said they were unable to deliver it.

''It doesn't send a good message,'' said Norm Wolfinger, Seminole state attorney. ``The reality is, you can get away with drunk driving.''

In Sarasota County, the courts ruled in November that prosecutors should turn over the source code. As a sanction for not delivering it, a three-judge panel is requiring prosecutors who wish to use the Intoxilyzer 5000 in court to prove its accuracy. That means to let the breath tests into court, prosecutors would have to show the scientific reliability of the machine through expert witnesses in every case.

CASES TOSSED OUT
This is not the first time the Intoxilyzer 5000 has come under defense legal scrutiny.

Some Broward judges last year tossed out several cases after technicians at BSO and the Davie Police Department used tap water instead of distilled water to perform calibration checks on Intoxilyzers.

And last year, an attorney argued that the Coral Springs Police Department failed to perform calibration tests properly. A ruling on the case is expected in March.

Laura Barfield, the Florida Department of Law Enforcement's alcohol testing program manager, said the machines function well, and have been approved in Florida since 1984.

Florida requires the machine to be tested for accuracy monthly by local departments and annually by the FDLE. State law requires two breath tests in each case, and they should register within 0.02 of each other.

''There's a lot of quality control going on,'' Barfield said.

Lawyers and anti-drunken-driving advocates are concerned that the rulings will set a bad precedent.

''We are monitoring the situation very closely in Florida,'' said Orlando's Laura Dean-Mooney, a national board member of Mothers Against Drunk Driving. ``It's not about the accuracy of the results -- it's about a legal technicality or a loophole.''

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