Florida court battles over the software used in breath analyzers are threatening the admissibility of blood-alcohol level evidence in driving under the influence (DUI) cases, the Wall Street Journal reported on Dec. 16.Defense lawyers in eight counties have challenged the reliability of breath analyzing instruments made by CMI Group, demanding to see the original source code that determines blood-alcohol levels used as evidence against their clients. CMI contends that the information is proprietary, a "trade secret" that must remain concealed, according to Allen Holbrooke, outside attorney for CMI.
One state appeals court ruled last February that the defense was entitled to "full information" about these tests in order for the evidence to be admissible in court. Later, a ruling that applied this decision to CMI's source code resulted in the discarding of 1,000 breath tests from Seminole County court cases this year. Sarasota County will have to dispose of the tests used in 156 DUI cases if CMI continues to withhold the information.
"One should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," wrote the Florida Fifth District Court of Appeal.
"If we're determining guilt by machine, we have to take into consideration that there are isolated computer glitches that could affect the test," argues Stuart Hyman, a Florida criminal-defense attorney. CMI may have made substantial modifications to the software without obtaining state approval, he contends.
"My feeling is that what's going on in Florida is the defense is going on a fishing trip," says Rankin E. Forrester, the CEO of Intoximeter, a rival company of CMI. Intoximeter includes a mechanism in its breath analyzers showing that the software has not been modified.
The problem could be solved with a simple nondisclosure agreement to protect the information once it is handed to the court, says John Fusco, chief executive of National Patent Analytical Systems Inc., another rival company.
"The instruments are checked for accuracy and reliability, and in most states that's good enough," says Bill Scholfield, CMI's manager of engineering. The products of CMI's rival companies may be used if CMI continues to be uncooperative, however, and if the litigation begins to affect business, "then we'll probably have to do something," Scholfield admits.
"The ramifications [of this litigation] could be extreme," warns Donald Hartery, assistant state attorney in Sarasota County. "It could effectively suppress every breath test in Florida, and if other states went that way, every breath test in the U.S."
As many as 95 percent of DUI convictions rely at least in part on breath test evidence, experts say. Although CMI's products are used in 41 states, the legal issue has so far only taken hold in Florida, with courts in four counties backing defendants' challenges to the software.
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