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Intoxilyzer 8000 DUI Cases Have Witness Problems
Problems with Intoxilyzer 8000 breath testing machines and with prosecution's expert witness may make prosecutions of DUIs more difficult.
December 02, 2011 /Transportation and Trucking PR News/ -- If you are pulled over on suspicion of driving under the influence (DUI), you will typically be asked to take a "breath test." The test is performed on a breath testing device, which is essentially a mobile chemistry lab that you blow into that calculates your blood alcohol content (BAC) and generates a digital read-out of the percentage.
In Florida, any reading above .08 BAC is considered legally intoxicated, and, when a person's BAC is at or above this percentage, operating a motor vehicle is illegal, which may result in a DUI charge. However, the breath test is only as good as the equipment that is used, and a few issues with the use of the Intoxilyzer 8000, a model of breath testing equipment that many law enforcement agencies in Florida use, have developed.
Intoxilyzer 8000
In the words of the manufacturer, the Intoxilyzer 8000 is a "mobile evidential infrared spectrometry breath testing unit." What that means is that an infrared light source and detector inside the machine are used to measure the amount of alcohol in the breath sample. The machine doesn't really provide a blood alcohol content measurement, (it doesn't use a blood sample); rather, the Intoxilyzer 8000 works on the premise that as more alcohol is present in a breath sample, the less infrared light will pass through the breath sample and be measured by the detector.
Problems?
In order for a breath test reading to be accurate, all of the variables need be measured accurately. The reading depends on the volume of air blown into the machine. So, if you do not blow hard enough and provide an insufficient sample, you can be charged with a "refusal." Refusing to take a breath test is grounds for an automatic license suspension in Florida.
Also the measurement may be wrong. Dozens of cases have shown problems with the Intoxilyzer's ability to record accurate volume measurements. The 8000 model was supposed to have an improved measuring capability, but the evidence does not appear to support that claim.
Calibrations
A very important constraint on the accuracy of the breath testing machines is how well they are calibrated. If any of the necessary calibrations are incorrect, none of the readings of the machine will be accurate. Breathalyzers require regular maintenance and calibration, which sometimes does not happen.
Prove It
In Florida, law enforcement has to provide testimony concerning the accuracy of the breath-testing machine in order for the test results to be admitted to court as evidence. Because the test result is testimonial, there needs to be a person who can testify as to the scientific validity of the test.
Confrontation Clause
Many states have allowed an affidavit of the breath test to be used as evidence. That practice appears to have been invalidated by the U.S. Supreme Court case of Melendez-Diaz, which ruled that the Confrontation Clause of the U.S. Constitution was violated by failing to provide a witness who could testify as to a drug test result.
Affidavits were allowed in Florida before Melendez-Diaz was decided, and the decision has caused additional problems in Sarasota and Manatee counties, as the Herald-Tribune reports.
The principal breath-test expert-witness for the prosecution has been dropped over a dispute involving payment of his fees. Prosecutors have apparently made the decision to forgo his testimony, rather than pay his $1,200 per day fee. This means the counties will not have an independent expert to testify on the accuracy of Intoxilyzer testing.
The reason the counties relied on this witness was the independence of his testimony, as he was not an employee of the state. For cases going forward, prosecutors will have to use employees of the Florida Department of Law Enforcement (FDLE) to provide support for the breath tests.
One defense attorney is quoted in the Herald-Tribune story as saying, "You've got the fox guarding the henhouse. They are testifying that their own procedures are scientifically valid."
Other Evidence
Prosecutors can always call on the arresting officer, who can testify concerning how the defendant performed the field sobriety tests and other observations about the stop and arrest.
This testimony may be sufficient to prove their case, but it clearly makes DUI cases more complex to prosecute. Intoxilyzers have an element of the "black box" mystique about them; they produce a number and they are a sophisticated computer-like machine, they can't be wrong? Can they?
If you have been charged with drunk driving, speak to an experienced Florida criminal defense attorney, especially if the Inoxilyzer 8000 was used by the police during the stop. An attorney can defend your legal rights.
Article provided by Bauer Crider Pellegrino & Parry
Visit us at www.floridadefense.com
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