For years since the Intoxilyzer 8000 was approved by Florida Department of Law Enforcement to test DUI suspects in 2002, defense attorneys have toiled with the unreliable results the machines produce. There are a myriad of issues surrounding the breathalyzer test, and the tip of the iceberg was discovered soon after its inauguration. The first glitch was caught by defense attorneys who noticed the machine would produce results despite the fact that not enough air was blown into it. Since then, it has been an uphill battle for DUI suspects and their respective defense attorneys to gain access to the full spectrum of the machine’s information, to which defendants are entitled under §316.1932 (1)(f)(4), which read as follows back in 2002:
“Upon the request of the person tested, full information concerning the results of the test taken at the direction of the law enforcement officer shall be made available to the person or his or her attorney.”
This is the statute cited in State v. Muldowny (2002) which held that a defendant is entitled to “inspect and copy and potentially use at trial or hearing the operator’s manuals, maintenance manuals and schematics of the intoxilyzer used to test the defendant when the results of the test are intended for use to affect the driving privileges of or assess penalties against that defendant.”
Five years later, Moe v. State ruled that because the state does not possess the source code of the intoxilyzer machines in use, motions by the defendant to have access to such information should be denied “because the information could not be obtained by the state.” This led to an update in the statute. It now contains the following limitations:
“Full information is limited to the following:
a.The type of test administered and the procedures followed.
b.The time of the collection of the blood or breath sample analyzed.
c.The numerical results of the test indicating the alcohol content of the blood and breath.
d.The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test.
e.If the test was administered by means of a breath testing instrument, the date of performance of the most recent required inspection of such instrument.
Full information does not include manuals, schematics, or software of the instrument used to test the person or any other material that is not in the actual possession of the state. Additionally, full information does not include information in the manufacturer of the test instrument.”
What is the significance of the source code?
The source code is an important piece of evidence. It is the human-readable version of a software written by computer programmers. The intoxilyzer models currently in use have been modified since they were approved in 2002, without receiving re-approval or re-certification, meaning they are technically not approved by the state for evidentiary use. The original intoxilyzer operated with version 8100.00 of the software, and today’s models utilize 8100.26 and 8100.27. The software inside the machines has changed, and it is cause for concern.
Being allowed to analyze the software behind the I-8000 could shed light on current issues and possibly reveal glitches that have gone unnoticed. Unfortunately, CMI has put up a strong fight over the years hiding the software behind trade secret protections.
In 2014, a panel of Orange County judges ruled in favor of criminal defense attorneys that DUI defendants are owed “effective access” to the software, including all past versions. After all these years, the panel noted “significant and continued anomalies” in the results produced by the breath test. Some of these include incorrectly high readings produced as the result of residual mouth alcohol, with still more shockingly inaccurate results. A famous case is often used to highlight the inaccuracy of the machine, one in which the I-8000 recorded a Seminole County DUI suspect blowing 15 liters of air into the machine — a number that is humanly impossible.
Despite many tests showing no anomalies, the fact that these discrepancies exist put the very lives of DUI suspects at risk. A device that works “most” of the time, if this is true, is still not reliable. As the battle against the Intoxilyzer 8000 persists, attorney Brian Gabriel continues to stand up for those who are arrested for DUI in Palm Beach County. With over 30 years of practice as a trial lawyer, you can count on him for a thorough and solid defense. Call 561-622-5575 for a free consultation.