Prosecutors have decided not to use alcohol breath-test results in about 100 current DUI cases in Sarasota and Manatee counties after learning about problematic Intoxilyzer 8000 breath-test machines.
The 12th Circuit State Attorney’s Office reviewed DUI cases this week and will send letters notifying defendants who were tested on five Intoxilyzer 8000s that the machines were not working properly and therefore the breath-test results will not be used as evidence against them. ”It doesn’t mean this is the end of those cases, just we’ll be prosecuting them without the breath tests,” said Assistant State Attorney Spencer Rasnake, supervisor of the division that prosecutes most DUI cases. But the lack of breath-test results could mean dropped charges and better plea deals for some drunk driving suspects.
The flawed breath-test results play a role in about one of every three pending DUI cases in Sarasota County, and just a handful of cases in Manatee County. For instance, the machine at Sarasota County’s South County jail in Venice had reported that some drivers — who have a maximum lung capacity of about five liters — blew 10, 11 or even 12 liters of breath into the machine. That improper sample size of breath volume can taint the results of the breath test, experts say.
The breath volume is important, ensuring that air comes from the deep part of the lungs, where blood and air interact inside the body. The first 1.1 liters of exhaled breath can come from the mouth, throat and esophagus and contain alcohol still in the mouth or other contaminants that can produce artificially high results. A machine that incorrectly reads one liter of breath as two liters could be testing a bad sample. And a machine that incorrectly reads two liters as one could contribute to the conclusion that the user had refused to blow sufficient volume, which can mean the loss of a driver’s license as if the test had been refused.
From an procedural perspective, the results from a breath test is one of the most powerful pieces of evidence in DUI trials: If the Intoxilyzer 8000 says a person’s blood-alcohol level was above 0.08 percent, the law states a jury should assume the driver was impaired. This is exactly why breath test results from the Intoxilyzer 8000 are being thrown out of court.
However, a larger issue looms with respect to past convictions based on the results of the Intoxilyzer 8000 breath test in Sarasota and Manatee counties. The Florida Department of Law Enforcement has reported that they fixed the machines in July 2011, but inspectors never noted how far off the breath-volume calculations were, and there is no way to know how long the machines were working improperly. FDLE started quietly fixing the machines in January and putting them back into service. Sarasota County’s machines were fixed in July. The inevitable reality is that these malfunctioning devices directly lead to DUI convictions not only before the machines were removed for maintenance, but also after the machined were placed back in use.
What recourse might an individual convicted of DUI in Sarasota and Manatee have? The answer is shocking-FDLE officials have chosen to not inform defendants who may have been wrongfully convicted or unfairly lost their driver’s licenses after being tested on the flawed machines and then convicted.
Florida is no stranger to state owned and operated devices, remember the swinging chads? What recourse was there for those voters? Oh yeah-they got George W. Bush for four years.
By: David Edelstein October 17, 2011.on November 14, 2011.