Breath Testing Collier County Order Criminal Defense and DUI Attorney Brian Gabriel of the Law Office of Gabriel & Gabriel in Palm Beach County is pleased to hear that the Judge finally removes CMI and FDLE blindfold. Recently, a Judge in Collier County, Florida, ruled that the unapproved modifications to the Intoxilyzer 8000 breath testing instrument have rendered breath testing results potentially inadmissible at trial against the accused. In this case, the defense sought to challenge the approval status of the Intoxilyzer 8000 instrument due to unapproved modifications such as the drilling of the hole in the purge valve. The Court held: “The State of Florida contracted with C.M.I. to provide scientific breath instruments that would be submitted for evidentiary use to assist in obtaining convictions of suspected impaired drivers.

The evidence in the instant case is overwhelming that C.M.I. has chosen to ignore the requirements of N.H.T.S.A. regarding all modifications of previously approved instruments. The manufacturer has repeatedly modified the instrument without affording N.H.T.S.A. an opportunity to evaluate all the modifications and ensure accuracy and reliability. Further, to compound the problem, after 2004 the F.D.L.E. has chosen to amend Florida Administrative Code Rule 11D-8.003 to remove the requirement that C.M.I. notify the State of Florida regarding modifications of the Intoxilyzer 8000. In essence, there is no record from C.M.I. indicating exactly how many modifications have been made. This Court is extremely concerned that F.D.L.E. has given the manufacturer free reign to modify the Intoxilyzer 8000 in any manner they sit fit. There is no way to say that the Intoxilyzer 8000 as modified is the same machine approved for use in the State of Florida in 2002.”

It is wonderful to see that a trial Judge has finally removed the blindfolds that the Florida Department of Law Enforcement and the manufacturer, C.M.I.. have always tried to place on the eyes of the Court. These same issues are attempting to be raised in Palm Beach County. At this point in time, the State has fought very vigorously to maintain the blindfold on the eyes of the Judges of Palm Beach County. As the Judge in Collier County recently stated, “The Court is extremely concerned that accused impaired drivers are being convicted and often incarcerated using an instrument that has been modified on so many occasions and the specific nature of the modifications have not been disclosed. A criminal defendant should not face conviction and possible incarceration based upon secret undisclosed evidence.” The issue over the unapproved modifications to the Intoxilyzer 8000 are presently being litigated in Monroe County, Broward County and Palm Beach County. Only once the Courts realize the scheme that C.M.I. and the Florida Department of Law Enforcement have followed will scientifically reliable breath testing results be insured in our criminal courts throughout the State of Florida.