Friday, June 10, 2005

Intoxilizer 5000: Hiding the Ball

Technicality springs DUI defendants
By Rene Stutzman
Sentinel Staff Writer

June 1, 2005

SANFORD -- In the past five months, Seminole County judges have thrown out hundreds of breath-alcohol tests that show drivers were legally drunk.

The reason: The state won't disclose how the test machines work -- not because it doesn't want to, but because it doesn't have the information, and the manufacturer won't give it up.

Seminole judges have tossed out more than 500 breath tests. As a consequence, prosecutors say, drunken drivers are getting off.

One is Pieter Johannes Wesselius, 32, of Altamonte Springs. He was acquitted May 17 by a Seminole County jury that did not know his breath-alcohol measured 0.20, or 21/2 times the legal limit.

Wesselius was driving a black Harley-Davidson on State Road 436 in Altamonte Springs on Sept. 18 when he was pulled over, according to a police report. He told officers he'd had six beers.

Two years earlier, he had pleaded no contest to drunken driving in Seminole, according to court records.

Wesselius, who is in jail after pleading no contest to driving a motorcycle without a license, could not be reached for comment.

What's going on in Seminole is unusual. Nowhere else are judges throwing out virtually every breath test that comes before them.

That's because all four Seminole County criminal judges now use the same standard: If a DUI defendant asks for a key piece of information about how the machine works -- its software source code -- and the state can't provide it, the breath test is rejected.

Prosecutors say they don't know how many drunken drivers have been acquitted as a result. But Gino Feliciani, the misdemeanor division chief in Seminole's State Attorney's Office, said the conviction rate has dropped to 50 percent or less.

Seminole judges are all following the lead of Seminole County Judge Donald Marblestone, who in January ruled, though the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

"Florida cannot contract away the statutory rights of its citizens," the judge wrote.

Marblestone would not discuss his decision, citing pending cases.

Judges in other counties have said the opposite. The state can't turn over something it does not possess, and the manufacturer shouldn't have to turn over trade secrets, they've said.

Three weeks ago, all eight of Brevard's county judges signed an opinion saying defendants were not entitled to the machine's source code. Three weeks before that, judges in Volusia and Bay counties also sided with the state.

The demand for the machine's source code has popped up in Orange County but with less-dramatic results. Some judges have ordered the state to turn it over, but others have not, said Michael Saunders, the county court bureau chief for State Attorney Lawson Lamar.

In Orange, defense attorneys also are demanding access to another Intoxilyzer trade secret: the machine's memory system.

The machine at the center of all this is the Intoxilyzer 5000, the only breath-alcohol machine used by Florida law-enforcement agencies.

When a drunken-driving suspect is hauled into a police station or jail, he must blow into it or lose his drivers license.

The machine determines how much alcohol is in his blood by measuring the amount of alcohol he exhales. It does that by shining an infrared light through a puff of his air.

The $5,000 machine is made by CMI Inc. of Owensboro, Ky. Company officials would not comment.

The Intoxilyzer 5000 is perfectly reliable if properly maintained and operated, said Laura Barfield, manager of alcohol testing for the Florida Department of Law Enforcement, the agency that oversees all breath-alcohol testing in Florida.

But FDLE's word is not good enough for defense attorneys.

CMI has changed the unit's software and some parts during the years, so it's no longer the same machine the FDLE approved in 1993, according to Stuart Hyman, an Orlando lawyer who makes his living defending DUI defendants.

"They've put different parts and pieces in it," he said.

Those changes were substantial, he said. The machine may no longer be as accurate as it was, he said.

Prosecutors do win DUI cases without the breath test. Officers can testify about how the defendant was driving, what he told them, how he performed in field sobriety tests, such as trying to balance on one leg.

Feliciani disagreed, saying breath tests are the surest way to convince jurors.

Attacks on the Intoxilyzer are not new. Through much of 2002, 2003 and early 2004, hundreds of breath-test results were thrown out because the state refused to turn over trade secrets it did possess -- the machine's operating manual.

Then, as now, the state claimed the information was the private property of the manufacturer.

That battle ended last year when the 5th District Court of Appeal ruled the state had to turn them over.

That is where this latest skirmish may land, as well, Feliciani said. The issue is on appeal in the 18th Judicial Circuit, one step below the 5th DCA.

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