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Do DUI defendants have the right to see the Intoxilyzer's code?

The only breath testing devices whose evidence is admissible in Florida courts is the Intoxilyzer, which is manufactured by CMI, Inc., a company based in Kentucky. Attorneys for three Seminole County DUI defendants say that the programming documentation for the Intoxilyzers is essential to the defense, because only that documentation can allow them determine whether the machines are working correctly.

Those attorneys have asked the Florida Supreme Court either to order CMI to make that information available by subpoena or to make Intoxilyzer evidence inadmissible in Florida drunk driving cases.

"We have a computer program here that is saying that individuals are committing crime. We believe that were entitled to know how that computer works and how that evidence is generated," said a spokesperson for the Florida Association of Criminal Defense Lawyers, which is not directly involved in the case.

In the case of the technical details of the Intoxilyzer's programming, the dispute is over how a law called the "Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings," should operate. The Uniform Law governs the procurement of certain evidence from other states. CMI says that subpoena requests for details about the Intoxilyzer must be handled through the processes laid out in the Uniform Law, but the defense attorneys say that law only applies to witnesses, not documents.

When Florida DUI attorneys have sent subpoenas to the company seeking technical information, however, Kentucky's courts have uniformly blocked those subpoenas.

The justices appeared to have some sympathy for the DUI defendants' predicament:

"Is it fair to let a company in some state manufacture equipment that is producing false readings, causing individuals in this state to get locked up?" Justice R. Fred Lewis pointedly asked CMI's attorneys.

The stakes are high, and the justices seemed to understand that. However, if they should determine that CMI is right about the application of the Uniform Act to documents, the court would be reluctant to take any action to change the law. Questions of whether laws are working as intended are generally for the legislature to answer. However, the court does have full control of the Florida Rules of Criminal Procedure, so they have the option of making Intoxilyzer results inadmissible in Florida DUI cases unless criminal defense attorneys have access to the technical data.

Source: Sunshine State News, "Will Florida Supreme Court Make DUI Breathalyzers Inadmissible?" Eric Giunta, Feb. 6, 2013

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