Attorney Robert Harrison says the ruling is a victory for defendants.

SARASOTA -- A ruling by a panel of three county judges Thursday stopped short of throwing out breath-test results in more than 150 drunken driving cases.

Defense attorneys in the county are attacking the credibility of the Intoxilyzer 5000, a briefcase-sized machine that uses a breath sample to let police know if someone's blood-alcohol content reaches 0.08 percent, the level at which a driver is considered intoxicated.

The defense attorneys previously won a key ruling that said defendants are entitled to inspect the source code of the machine's software.

Since the manufacturer has refused to divulge the source code to prosecutors, the defendants argued they have no ability to test whether the Intoxilyzer 5000 is in compliance with state rules.

In Thursday's ruling, the judges said that the inability to test the Intoxilyzer 5000 does not merit dismissing the results.

However, the ruling also makes it more difficult for prosecutors to get breath-test results from the Intoxilyzer 5000 into a DUI trial.

Under state law, the breath results are usually entered into evidence by prosecutors with no testimony from witnesses certifying their accuracy.

Thursday's ruling says the shortcut can't be used without the Intoxilyzer 5000's software source code.

So prosecutors will have to treat the breath tests like any other piece of scientific evidence. They have to prove the test is reliable and performed by a qualified operator with the proper equipment. And they must also call an expert to explain the meaning of the test.

Defense attorneys counted Thursday's ruling as a win.

The ruling gave prosecutors who want to use the results from the Intoxilyzer 5000 a legal hurdle they cannot get over, said Robert Harrison, a Venice DUI attorney leading the fight.

"The judges have effectively thrown out the breath test in every case without coming out and saying, 'We have thrown the breath tests out,'" Harrison said.

Prosecutors would need to use the source code to prove the machine was working properly, he said. And then the prosecutors are back to the problem of the company refusing to turn over the source code.

Prosecutors could not be reached for comment Thursday afternoon.

This is cache, read story here

login or register to post comments