After three years of court battles, hundreds of DUI cases in Manatee and Sarasota Counties are now free to proceed. Some cases will certainly be tried, others dismissed. The results of breath tests taken by a machine called the Intoxilyzer 5000 in those cases will not be allowed at trial or may be presented in a very limited fashion.

Intoxilyzer 5000 Source Code

Several years ago, Manatee County Judge Doug Henderson and Sarasota County Judge David Denkin, in separate DUI cases, ordered CMI Inc., the Kentucky company that makes the Intoxilyzer 5000, to divulge its “source code” to defense attorneys. “Source code” is the details of the computer program which analyzes an arrestee’s breath sample. Criminal defense attorneys have long argued that their clients (and their DUI experts) have a right to examine the source code in order to determine whether the machines work properly.

CMI refused to disclose the source code and the judges ordered sanctions – including suppression of the breath tests if the source code wasn’t turned over to defense attorneys. CMI claimed that the source code was a legally-protected trade secret.

Years of legal wrangling finally came to an end when the Second District Court of Appeal rejected CMI’s latest effort to avoid the disclosure in December. Henderson indicated that the I-5000 breath test results would be inadmissible in the Manatee County cases. Denkin has not yet announced whether the results will be suppressed in Sarasota County or given limited evidentiary weight.

The suppression of the breath tests does not necessarily mean dismissal of all of the Manatee and Sarasota DUI cases involving the Intoxilyzer 5000. Prosecutors will now review each case and decide whether to take the cases to trial using other evidence such as field sobriety tests and admissions of guilt.

Intoxilyzer 8000 Source Code

Although Florida law enforcement has phased out use of the Intoxilyzer 5000 in the past few years, new litigation is already playing out all over the state over its replacement, CMI’s Intoxilyzer 8000. In fact, the Florida Department of Law Enforcement (“FDLE”) has filed a lawsuit against CMI in Leon County, Florida to determine who owns the I-8000 source code.

While both CMI and FDLE agree that the state agency only purchased a license to use the software, some criminal defense attorneys contend that FDLE actually purchased the I-8000 source code from CMI and that the state must disclose that code to defendants. That case is still pending and will be closely watched by DUI defense attorneys all over the state.

DUI

This entry was posted on Monday, February 9th, 2009 at 11:15 pm and is filed under Florida Criminal Law News. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.