Florida Courts Embroiled in DUI Breath Test Controversy

For years, controversy has surrounded the use of the Intoxilyzer 8000, a device used to measure the blood alcohol content of a person suspected of drunk driving. Evidence has shown that the device regularly produces incorrect readings.

This evidence has led the Florida 12th Judicial Circuit - which includes Sarasota and Manatee Counties - to prohibit the use of Intoxilyzer 8000 results as evidence in drunk driving cases.

Manufacturer Won't Release Source Code

After evidence emerged that the Intoxilyzer was producing incorrect readings, Florida DUI defense attorneys began bringing legal challenges to the admissibility of breath test results. They argued that the jury should not be presented with evidence from an Intoxilyzer 8000 unless the prosecution could explain how the machine worked and prove that it provided reliable and accurate measurements of a suspect's blood alcohol content.

The 12th Circuit agreed, and they demanded that the Intoxilyzer's manufacturer provide access to the machine's computer source code. Prosecutors could use this code to show how the machine worked. Defendants' rights would not be compromised because they would have the ability to review the code and challenge the prosecution's analysis.

The manufacturer refused to supply the source code, arguing that doing so would compromise a valuable trade secret. As a result dozens of Floridians charged with DUI had their cases dismissed or had their charges reduced.

Prosecution Paid Expensive Witness

Eventually, prosecutors figured out a work-around. They hired an expert witness - former Florida Department of Law Enforcement inspector Matthew Malhiot - to testify as to the validity and reliability of the machines. The court allowed his testimony to be admitted into evidence, effectively solving the problem caused by the missing source code.

However, Malhiot was the only one who could do the job, and his services did not come cheaply. He charged $1,200 per day to testify in court and $240 if the prosecution named him as an expert but settled the case before trial. This August, the state's attorney notified prosecutors that it would no longer pay for Malhiot's services.

Instead, prosecutors were directed to use current Florida Department of Law Enforcement employees as expert witnesses. However, both prosecutors and defense attorneys questioned whether this approach would work - expert witnesses are supposed to be unbiased, and law enforcement employees have an interest in seeing DUI defendants convicted.

Intoxilyzer Results Banned

The 12th Circuit put the issue to rest this fall, when it completely banned the use of Intoxilyzer 8000 breath test results as evidence in DUI prosecutions. Instead, police and prosecutors will have to find other ways to prove a defendant was driving drunk.

This issue illustrates how complicated DUI prosecutions can be, and how important it is for a DUI defendant to have an experienced attorney who understands all the available defenses. If you've been charged with the DUI, you would be wise to contact an experienced drunk driving defense attorney right away.