Legal loophole in DUI cases could be tossed


May 5, 2006

The Florida Legislature voted Thursday to close a gaping loophole in a
state law that had resulted in hundreds of breath-alcohol tests being
thrown out of court.

By a unanimous vote, the House outlawed the release of computer-software
secrets at the core of the breath-alcohol machine used by every
law-enforcement agency in the state.

The bill, approved earlier by the Senate, now goes to Gov. Jeb Bush, who
has not indicated whether he will sign it into law.

A dispute over disclosure of proprietary information about the
Intoxilyzer 5000 has meant weaker cases against at least 1,500 drunken
drivers and delayed for months the trials of hundreds of others, an
investigation by the Orlando Sentinel found.

It is not clear how many drunken drivers have been acquitted because of
the problem.

For 11/2 years, defense attorneys have argued in counties across Florida
that state law required prosecutors to release the software information.
Without it, there's no way to know whether the breath-alcohol test unit
works properly, they said.

A few judges, especially in Seminole County, agreed, banning juries from
learning about breath-alcohol test results if the state didn't surrender
the Intoxilyzer 5000's software source code.

Prosecutors said they couldn't release the source code because they
didn't have it. The machine's manufacturer, CMI Inc. of Owensboro, Ky.,
says the code is a trade secret.

The legislation passed Thursday requires prosecutors to release details
about breath-alcohol test results, but not about how the machine works.
It also bans judges from ordering prosecutors to produce any information
not in their possession.

"I'm very happy to see it pass," said Rep. Sandra Adams, R-Oviedo, one
of the biggest supporters of the legislation. "I think it will mean we
will go back to looking at the evidence."

"It's a great thing," said Maj. Jim DiBernardo of the Miami-Dade Police
Department and state policy director for Mothers Against Drunk Driving.

Defense attorneys questioned the constitutionality of the legislation
and said they would continue to challenge the machine's accuracy.

"What am I going to do? We're still going to keep doing the same things
that we're doing," said Joerg Jaeger, an Orlando lawyer and DUI
specialist. "I think it's a violation of due process."

Defense attorneys have successfully raised a variety of challenges
against the Intoxilyzer 5000 for nearly two decades. They include such
things as how the machines are maintained and whether testers follow
proper procedures.

"They're messing with the rights of defendants," said Dennis Salvagio,
an Orlando defense attorney.

Prosecutors were thrilled with the vote.

"I am very pleased, to say the least," said Gino Feliciani, the Seminole
County assistant state attorney who wrote the legislation and worked
with other Florida prosecutors to win its passage.

Feliciani was one of the trial lawyers who had to walk into court day
after day, stymied each time the issue came up because Seminole County
judges, in lock step, ruled it was unfair to introduce breath-alcohol
results if defendants could not fully analyze the machine that produced
them.

Seminole County is where the source-code argument had the most effect.
Four of the five county judges who hear misdemeanor DUI cases have
barred breath-alcohol results since January 2005. The fifth judge, Jerri
Collins, was appointed in December and has not yet heard the issue.

The source-code challenge quickly spread to more than a dozen other
counties, including Miami-Dade, Broward, Pinellas and Hillsborough.

Judges in Sarasota and Manatee counties have ordered the state to turn
over the source code, though they've stopped short of throwing out all
breath-alcohol test results.

Most judges in other counties have simply rejected the challenge.

"Overwhelmingly, other judges around the state have denied it," said
Earl Varn, who oversees misdemeanor DUI cases in Sarasota County.

Police agencies in Florida began using a new breath-alcohol machine, the
Intoxilyzer 8000, manufactured by the same company, on March 27.

Jaeger and Stuart Hyman, who often worked together in attacks on the
Intoxilyzer 5000, said they doubt the accuracy of the new unit and plan
to challenge it, too. Hyman said that in tests four years ago, the
Intoxilyzer 8000 reported there was alcohol in puffs of air that had
none.

"They had results that came out the way they weren't supposed to come
out," Hyman said.