Yet Another DUI “Loophole” Plugged

Posted by Lawrence Taylor on May 10th, 2006

As I mentioned in an earlier post, defense attorneys continue to be frustrated in their attempts to find out how specific breath testing machines are programmed to work.  The manufacturers hide behind a "trade secrets" wall, and prosecutors in collusion with them profess inability to obtain the information.  And the accused citizen continues to face "trial by machine" — with the main "witness" immune from cross-examination.

After judges in a number of Florida counties finally ordered prosecutors to turn over the information or have the tests suppressed, state legislators decided to plug this legal "loophole" (or, as it is known to some of us, "due process"):


Legal Loophole in DUI Cases Could be Tossed


Orlando Sentinel.  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….

For 1 1/2 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.

"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.

Prosecutors were thrilled with the vote…


Bear in mind that the primary evidence against a citizen accused of drunk driving is the breathalyzer.  In most cases, the accused is charged with two offenses:  DUI and driving with a BAC of .08% or higher.  In the former charge, the breath reading establishes a presumption of guilt; in the latter case, the breath reading is essentially the only evidence.  Yet, defense attorneys are blocked from finding out how the machine is programmed to work — and, thus, whether it was accurate.

(Interesting aside:  the spokesperson for the Miami-Dade Police Department is, apparently, also state policy director for MADD.)


(Thanks to William C. Head.)

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