9 Investigates DUI tests getting tossed

ORANGE COUNTY, Fla. — It is the only approved way to test a person’s breath to see if they’re drunk, and right now its results can’t be used in Orange County courts.

The Intoxilyzer 8000 is the only approved method in Florida for testing a suspect’s breath for alcohol and determining if the suspect is above the legal limit of 0.08 percent.

In all 67 Florida counties, the Intoxilyzer 8000 is used by law enforcement as part of the evidence collection process following a DUI arrest. However, the results of the machine have been successfully challenged by attorneys and as a result, the data from the machine cannot be used in Orange County.

On Sept. 22, 2014, a seven-judge panel signed an order which stated, in part, “Until such time as the Intoxilyzer 8000 software versions 26 and 27 and their supporting documents are provided, the prosecution will be precluded from introducing any results from the Defendant’s Intoxilyzer 8000 breath test.”

"If you don't have a breath test result, then you can't prove that somebody has an unlawful breath alcohol level," said Orlando defense attorney Stu Hyman.  "In every case where a person takes a breath test, there is arguably some compromise if the breath test can't be utilized."

Hyman and other attorneys point to results from the Intoxilyzer 8000 filed with the court.  The results of every breath test are recorded by Florida Department of Law Enforcement, which stands by the machine.

However, according to the documents submitted to the court, the Intoxilyzer 8000 is not without its errors, including indicating a driver was above the legal limit while not recording any breath in the machine and in other cases recording a breath volume that is physically impossible.

"These machines are in large part determining if somebody is going to lose their job, whether they are going to go to jail, have a criminal records, if their insurance rates are going to go up," said Hyman. "If you are going to do guilt by machine, then you need to make sure the machine is scientifically reliable."

“It would be nice to have the results come in, and we’re going to do everything we can to try and get them in,” said Assistant State Attorney Will Jay.

The state stands by the machine, saying the errors highlighted by defense attorneys are only a small fraction of the overall results and that the machine is still used in virtually every other county across the state.

"The real issue that the state has is that we are not in control of this situation," said Jay. "This is between the defense and a third-party corporation."

Jay said it is up to defense attorneys to get what is known as the "source code" from the manufacturer of the Intoxilyzer 8000, CMI, in Owensboro, Kentucky. He said the company has offered to allow attorneys to view the code and the revision history, but he said defense attorneys have yet to make that happen.

9 Investigates attempted to call and email CMI, but those calls and emails were not returned.

WFTV