By Jackson Hilliard
On November 2, 2012, a Collier County Florida judge questioned the Intoxilyzer 8000′s reliability for not conforming with the USDOT Conforming Products List. The Intoxilyzer 8000 is the main breath test machine that Florida uses in its DUI investigations.
According to Florida’s Administrative Code 11D-8.003, the Florida Department of Law Enforcement (FDLE) must approve all breath test machines to assure their accuracy and reliability before any local law enforcement can use the machine in a DUI case. Once the FDLE approves a breath test machine, the law assumes that the machine is accurate, which means the government does not have to prove its accuracy in court. However, the FDLE cannot approve any device that has not also been approved by the United States Department of Transportation (USDOT).
The USDOT maintains a “Conforming Products List ” of breath test machines that conform to the USDOT’s model specifications for breath test machines, which you can find in the Federal Register, 58 FR 48705. The USDOT maintains a rigorous set of criteria that each machine must meet in order to get on that list. If a manufacturer wants to get on the list, it must first submit its machine along with its design schematics for the USDOT’s inspection and review. Further, if a breath test machine manufacturer wants to modify its design later, it must also submit the design modifications for approval.
Intoxilyzer 8000 modified at least sixteen times without any notification or approval.
The Collier County judge found that since the Intoxilyzer 8000 was approved in 2002, its manufacturer made 17 modifications. However, the manufacturer failed to submit for approval 16 out of those 17 modifications. The Collier County judge found overwhelming evidence that the Intoxilyzer 8000′s manufacturer, CMI, ignored federal law by not submitting its modifications for approval. The judge also found that the Florida Deparment of Law Enforcement does not require CMI to notify anyone in Florida when it modifies the Intoxilyzer 8000. The net result is that since 2002, CMI has secretly modified the Intoxilyzer 8000 at least sixteen times without any notification or approval from either the federal or state government. Further, no one, except CMI, knows exactly how many modifications CMI has made to the Intoxilyzer 8000 since 2002.
Intoxilyzer 8000 reliability questioned.
Judge Carr wrote in his opinion that he was ”extremely concerned that [the] F.D.L.E. has given [CMI] free reign to modify the Intoxilyzer 8000 in any manner [CMI sees] fit.” He also wrote that the FDLE and CMI “have not taken the appropriate steps to ensure [the Intoxilyzer 8000's] accuracy and reliability.” Judge Carr expressed concern that “a criminal defendant should not face conviction and possible incarceration based on secret undisclosed evidence.”
Intoxilyzer 8000 can no longer be presumed reliable in court.
In his summation, the Collier County judge found that the Intoxilyzer 8000 can no longer be presumed reliable in his courtroom. For the time being, the government will have to prove that the breath test machine is accurate and reliable at trial. The jury will no longer be able to presume the machine works, or worked properly in the individual case before that jury.
This case presents a huge problem for the government. There is no doubt that the judge’s ruling will be challenged on appeal. And it remains to be seen whether this judge’s ruling will impact other courts outside of Collier County. However, from this attorney’s perspective, Judge Carr made a very prudent ruling and should be applauded for his willingness to defend all of our Due Process rights.
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