By Todd Ruger
Sarasota Herald Tribune
SARASOTA — For years, the argument over the computer code inside the state’s alcohol breath-test machines has hampered hundreds of DUI prosecutions in Sarasota and Manatee counties.
It appears the problems will not stop anytime soon, despite a recent ruling on the issue from the 2nd District Court of Appeal.
Judges in Sarasota and Manatee counties have ruled that defendants have the right to examine the evidence against them, including the computer code inside the Intoxilyzer 8000. They have issued a subpoena for it.
The manufacturer, CMI Inc. of Kentucky, says the code is a trade secret and has so far refused to comply with the subpoenas. In cases where breath test results are the most compelling evidence, prosecutors have had to dismiss or reduce charges.
On Friday, the 2nd District Court of Appeal ruled that CMI must honor the subpoenas, seemingly resolving the issue for defendants who want to make sure the machine being used to convict them is the same one the state has approved.
The company must now decide whether to disclose the code or continue to allow DUI defendants to attack their cases by having the breath-tests excluded from trials, said Robert Harrison, the Venice attorney who has led the fight against the Intoxilyzer machines since 2005.
“They’re either going to have to comply with the DCA or its going to be goodbye, breath test,” Harrison said.
CMI’s attorney says the company has not yet decided how to respond, but it will not simply turn over a valuable corporate secret that is central to its business.
While appealing to the Florida Supreme Court is an option, so is going back to the circuit courts and discussing how to provide the computer code with safeguards.
“We haven’t made a decision yet,” said Edward G. Guedes, a Coral Gables-based attorney.
While Sarasota and Manatee county judges have ruled that defendants should get to examine the computer code, judges in other parts of the state have disagreed.
Law enforcement agencies and prosecutors do not have an alternative machine to use when combating drunk drivers. The Intoxilyzer 8000 is the only breath-test machine approved for use in Florida.
The Florida Department of Law Enforcement says the Intoxilyzer 8000 is accurate and there are no plans to change to a different machine at this point.