MANATEE — Authorities cancelled a DUI checkpoint for this weekend and local judges issued an order Tuesday stating a breath test machine used by the Manatee County Sheriff’s Office does not meet state law requirements.
Defense attorneys have challenged the use of the Intoxilyzer 8000 — a machine used by Manatee County Sheriff’s Office — saying the machine was never approved for use in Florida. Manatee County judges Doug Henderson and Robert Farrance issued the order after the state was unable to prove what micron band measurement is used for the machine to measure the level of alcohol.
The order stated there was “compelling evidence” that the Intoxilyzer, 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. Law enforcement can only offer a breath test that is approved by the state, according to the Florida law.
In the meantime, the sheriff’s office cancelled a DUI checkpoint scheduled for July 3, said Sheriff Brad Steube.
“We cancelled the checkpoint because of all the controversy surrounding the Intoxilyzer. The problem is now when you pull into a check point, you are not observing the driving. You pull into a checkpoint and you develop probable cause from there,” he said noting examples such as the smell of alcohol or people fumbling for their license.
Steube said there are plans to appeal the order, and in the meantime, there is a strategy in the works for how law enforcement will possibly continue to use the Intoxilyzer. He would not give further details.
Instead of a checkpoint, deputies are going to saturate patrol this holiday weekend where there are high incidents of drunk driving, he said. They will be able to observe drivers swerving on the road and use videos as a part of the DUI case along with field sobriety tests.
Tom Hudson, an attorney specializing in DUI, said marginal cases will be harder to prove.
“It’s going to be the .09, .10 and .11 that are harder to prove, but when you get up to .15, you don’t need a breath test to get a conviction,” he said.
Hudson said law enforcement doesn’t necessarily look for convictions. They look to arrest people they suspect are impaired to get them off the road until the driver regains control, he said.
As a result of the order, people do not have to take the breath test, he said.
“If they tell you, you have to take it or lose or license, they are lying to you. You only have to test on an approved machine,” he said.
The Intoxilyzer machines have been challenged throughout the state by attorneys in over how the machine works, according to attorneys.
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.
Sarasota judges issued a similar order June 19 finding there were discrepancies in the technical specifications for the machines used in the local DUI cases, as provided by the manufacturer, according to the order.