South Carolina DUI Lawyer Blog

End DUI defense
Breathalyzer unit should be inspected

As opined at BradentonHerald.com on January 16, 2009

http://www.bradenton.com/opinion/story/1159488.html


Outrage over a judicial ruling on drunk driving on what could be perceived as a “technicality” decision came swiftly this week. But the court justifiably stuck to a strong adherence to the rule of law.
Since the introduction of breath tests in drunk-driving investigations decades ago, defense attorneys have attacked the validity of the results.
Now Florida’s Second District Court of Appeal has affirmed a Manatee County judge’s ruling that bars the results of breath tests in more than 100 DUI cases because the manufacturer of the testing equipment refuses to reveal the inner workings of its device.
This is not a dilemma unique to Manatee and Sarasota counties. This is a legal quandary across the nation, with similar court rulings in Louisiana, Arizona, New Jersey and Massachusetts.
Defense attorneys assert that DUI defendants hold the due process right to have the Intoxilyzer, manufactured by Kentucky-based CMI Inc., analyzed by programmers, biologists and physicists to determine whether the device provides precise results.
The company refused orders from both Manatee County Judge Doug Henderson and Sarasota County Judge David Denkin to reveal the source code, claiming the software is a protected trade secret.
Even though both judges agreed with the company on that point, they ruled the defendant’s due process rights had been violated and breathalyzer evidence should not be allowed into evidence.
All local DUI prosecutions dependent on Intoxilyzer results are in jeopardy.
DUI lawyers suspect that the Intoxilyzer’s internal calculations are based on certain assumptions, including the weight, size and sex of a defendant, that would not apply to everyone taking the test.
The rule of law must apply here, not the emotion surrounding the drunk-driving issue. Everybody wants to rid our roadways of reckless lawbreakers and potential killers, but that does not justify accepting as an article of faith that this product produces solid evidentiary results each and every time.
That would deny defendants the right to a fair trial.
We must determine if this commercial product does indeed have flaws. Are there bugs in the software? Defects in the machine?
Have we not learned our lesson from the numerous bad products exposed in the past year alone, especially imports from China, from toys with lead-based paint to deadly pet food? And now tainted drywall.
CMI should not be allowed to hide behind the “trade secrets” defense. An independent testing group, under a vow of secrecy, should check out this product thoroughly.
Only then will law enforcement agencies and prosecutors around the nation have confidence in their drunk-driving cases.
Law enforcement officers already deal with various rules and regulations covering the operation, inspection and calibration of the Intoxilyzer. DUI lawyers have been attacking their credibility in those areas for years — and will no doubt continue to cite operator error, improper calibration and device inspection failures, among other defense strategies.
Why not remove the major questions surrounding source code from the court’s consideration?
Society must have greater confidence in DUI prosecutions, too. CMI should put this issue to rest.