MANATEE — A circuit court judge has upheld the use of a breath test machine, stating it does meet state requirements after previous orders tossed the machine out in DUI court cases.
Judge Diana Moreland recently denied an order to suppress the results of the Intoxilyzer 8000 — a machine used by local law enforcement agencies during DUI arrests — in a case where 31-year-old Janet Landrum of Ellenton is fighting her 10th DUI.
The order was issued Nov. 6, and Manatee County Judge Doug Henderson also signed off on the order, making the test admissible in Manatee County.
That means more than 100 DUI cases are no longer in question over that portion of the arrest.
“I think we’re just glad all these cases aren’t in dispute,” said Manatee County Sheriff’s Office Traffic Sgt. Paul Fieber. The sheriff’s office cancelled a DUI checkpoint this summer after an order was issued tossing the breath test.
The issues in Moreland’s order have remained the same in the case, including whether the machine initially evaluated by Florida Department of Law Enforcement still meets standards after several software changes. The defense has also challenged the accuracy of the machine.
“Nothing presented by the defense demonstrates the results vary between different CMI Intoxilyzer 8000s today or between today’s machines and past machines because of filter variation; or that the results they provide are inaccurate because of the filter width admittance,” wrote Moreland in the order.
Henderson said in this hearing the state presented more evidence through testimony by bringing in additional experts, including the president of the company, Owensboro, Ky.-based CMI, Inc., that manufactures the portable infrared spectrometry breath testing machine.
“The issue is not dead. I expect there will be motions filed addressing some of the things that Judge Moreland put in her order, and the issue concerning the Intoxilyzer 8000 has only just begun,” said Mark Lipinski, a defense attorney representing Landrum.
Tom Hudson, an attorney who specializes in DUI cases, said he anticipates defense attorneys will request a rehearing. The Intoxilyzer continues to be tossed and then re-adopted in different orders.
“It certainly does create uncertainty. Uncertainty produces injustice. Part of having a decent system of justice is predictability, but the truth is we have had half a dozen hearings now. For the most part we have won them,” he said.
None of the Sarasota judges have adopted a similar order, he said.
CMI was previously ordered to produce source codes for the machine to allow attorneys to see how machines work and to review accuracy after new software editions.
The company has fought handing over the code citing concerns about intellectual property rights.
“The only information provided by the defense is assertion and speculation. In fact, its argument boils down to, they didn’t provide us with the software so they must have been substantial and important changes,” Moreland wrote.
The source code subpoena is still pending.
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