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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, July 9, 2008

Florida Judge Releases Breath Test From the Drunk Tank, Reverses Ruling On Admissibility Of Intoxilyzer 8000 Results

Back in May, I did a post about a ruling in which a City Court judge in Tucson, Arizona threw out results from the Intoxilyzer 8000 -- an alcohol breath test -- in 49 DUI cases, raising the prospect that judges statewide would do the same.  The basis for the judge's ruling was that CMI, the manufacturer of the machine, refused to release its source code, which made it impossible to determine whether Intoxilyzer 8000 results were reliable.

Well, a judge in Leon County, Florida had a different problem with the same machine, although that problem now appears to be resolved.  In August 2007, Leon County Judge Augustus Aikens threw out Intoxilyzer 8000 results in four DUI cases, ruling the tests were scientifically unreliable because of a lack of protocol for how long a person must blow into the device.  Aikens' fear was that drivers might be blowing into the machine too long, producing artificially inflated BACs, much like when you leave a tire pressure gauge on a tire for too long.  And, according to Aikens, there hadn't been an independent study on the Intoxilyzer 8000 to dispel his fear.

As a result of the ruling, more than 200 DUI cases in Leon County were put on hold, which of course prompted the State Attorney's to appeal Aikens' ruling.  And that appeal proved meritorious last week, with Charles Francis, chief judge for the 2nd Judicial Circuit, reversing Atkins' ruling.  Supporting this disposition was the testimony of the state's expert witness, who did not dispute that results could vary based on how long a person blows into the device, but who also said that BAC "would not be higher than what's circulating in (a person's body)."

State prosecutor Georgia Cappleman added that the breath-test result is always going to be lower than the actual blood-alcohol concentration in the person's body.  According to Cappleman, "You would need to get all the breath out of their lungs to (get an accurate reading), and you'd have to kill them to do that."

In the absence of evidence to the contrary, I'm willing to concede that the problem identified by Judge Aikens was illusory, but I still wonder why CMI hasn't released the source code unless it has something to hide.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/07/intox-httpwwwta.html

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