Published: Saturday, Jun. 27, 2009

Updated: Saturday, Jun. 27, 2009

Judges’ orders may toss tests

MANATEE — A Sarasota judge’s order that a breath test machine used by local law enforcement is not in compliance with state law could lead to Manatee judges throwing out test results in dozens of DUI cases, according to criminal defense attorneys.

Defense attorneys have challenged the use of the Intoxilyzer 8000, saying the machine was never approved for use in Florida.

Manatee County Judge Doug Henderson said he was considering several motions to toss breath test results generated by Intoxilyzer 8000 machines and by an earlier model used in Manatee, the Intoxilyzer 5000.

Henderson said he expected to issue his rulings next week.

Judge Robert Farrance was considering similar motions in other cases.

In the meantime, local law enforcement agencies, who said they will continue to use the machines unless ordered otherwise, are planning a DUI checkpoint for from about 10 p.m. July 3 to 4 a.m. July 4. The Intoxilyzer 8000 will be used for breath tests, said Manatee County Sheriff’s Office Traffic Sgt. Paul Fieber.

“We’re still using it,” he said.

Even if judges rule to throw out the breath tests, the pending DUI cases will still go to court based on other evidence, including field sobriety tests, video footage or possible physical evidence such as an alcohol container, Fieber said.

People who barely breathe over the legal limit — .08 — could possibly have their cases dismissed, though, said Tom Hudson, a defense attorney specializing in DUIs.

“For the borderline cases, these are the ones primarily affected,” he said.

“The only way you are going to convict them is with the Intoxilyzer reading,” he said.

Mark Lipinski, criminal defense attorney, said juries are less likely to convict someone of DUI if there is not a breath test.

“The nuclear bomb for DUI cases is the breathlyzer test. ... Jurors are pretty smart. They will say, ‘Wait a second, there’s no breathlyzer result and he didn’t refuse? There’s something wrong,’” he said.

“There’s going to be a lot of not guilty cases and reductions.”

The Intoxilyzer machines have been challenged by attorneys over how the machine works. The company that manufactures the Intoxilyzer has been in court battles for several years, and the company has declined to provide computer source codes due to competitive reasons, according to attorneys.

In an order issued June 19, Sarasota Judge David Denkin found there were discrepancies in the technical specifications for the machines used in the local DUI cases, as provided by the manufacuturer.

Denkin also found that there was “compelling evidence” that the machine used locally, while approved by the Florida Department of Law Enforcement, was not the version approved by the U.S. Department of Transportation, as required by state law.

“The evidence established that the Intoxilyzer 8000 described on the DOT ... list is materially different from the version of the Intoxilyzer 8000 ‘approved’ by FDLE. This substantial variation renders the Intoxilyzer 8000 used in these cases unapproved,” Denkin’s order states.

Discrepancies in how the machines measure breath alcohol content could possibly lead to inaccurate readings, defense attorneys have argued.

“We’re not saying it isn’t pretty accurate most of the time, the question is if you’re the one time in which it’s not accurate, should you have to pay the price?” Hudson said.

Beth Burger, criminal justice reporter, can be reached at 708-7919.