Breath tests banned from courtrooms in DUI cases

Ruling on state's efforts to fight breath test ban expected soon

ORANGE COUNTY, Fla. – A panel of Orange County judges could decide as early as Thursday whether a previous ruling that resulted in breath tests being kept out of court will be overturned.

[WEB EXTRA: Click to see FDLE data on Intoxilyzer tests | Part 1, Part 2]

Defense attorneys have been able to convince judges the results of the Intoxilyzer 8000 can't be trusted in court without the company first turning over its secret source code to the defense. The company, CMI, won't fully disclose what it calls its trade secrets, so the tests are effectively banned.

"(In) March of 2006, they bought this machine and put it into service in this county. And they haven't gotten one single result in against me and Stu since March 2006 -- that's eight years," said defense attorney Joerg Jaeger. 

Jaeger and the other attorney he referred to, Stuart Hyman, have been fighting having breath tests admitted into court for more than 25 years.

"We call them intoxilyzer wars," Hyman said.

Both attorneys have gathered binders of data from the Florida Department of Law Enforcement that they said show the Intoxilyzer 8000 can't be trusted. 

"Like individuals who are registering 10 or 11 liters of air, even though a human being is not capable of providing that much air into a machine," Hyman said.

Jaeger pointed to other paperwork he obtained from the FDLE where the Intoxilyzer 8000 determined a sample of air was three times the legal limit, even though zero air volume registered during the test.

"You think room air is three times the legal limit? If it is then we're all in trouble," he said.

The FDLE stands by the Intoxilyzer 8000. The department admits there have been isolated problems, but insists it's reliable and stresses how each device is tested monthly to ensure it's working properly.

"The Intoxilyzer is a dependable, reliable and accurate measuring instrument, and is eminently fair to the defendants blowing into it," said Patrick Murphy, the program manager of FDLE's Alcohol Testing Program.

While breath test results have been essentially banned in Orange and Osceola County courtrooms, law enforcement officers told Local 6 they are still regularly presented to juries in Brevard, Volusia and Lake counties. In Seminole County, it's hit or miss based on the latest rulings there. 

The situation hits home for parents of victims killed in drunk driving crashes, like Connie Russell, whose son Matthew Beard was killed by a drunk driver in South Florida in 2006. The driver responsible was convicted with the help of a blood test in that case. Russell has since joined Mothers Against Drunk Drivers and is very bothered by breath tests being banned from court.

"It makes me extremely angry because it shouldn't be happening," said Russell. "It's happening because some of these defense attorneys are deciding to play games, because their job is to get their client off."

Even though officers take blood tests in crashes involving fatalities or serious injuries, Russell said she worries that when drunk drivers get off they'll miss out on a life-saving lesson that comes when they're ordered to attend educational programs such as victim impact panels she hosts.

"When these defense attorneys do this for the drunk driver, they're not doing those drunk drivers any favors. They may be signing their death warrant," Russell said.

"It's always been a continuous fight," said Assistant State Attorney Will Jay. "The penalties for the first time DUI without a crash without personal injury are pretty tough, so it's a highly contested charge in county court."

Jay and David Fear, another assistant state attorney, are leading the efforts to overturn a 2008 ruling by a group of 10 Orange County judges which has resulted in breath tests being kept out of court.

"We want to be able to present this information to a jury in these DUI cases," Fear said.

Both sides faced off during three days of hearings in front of 10 Orange County court judges in December 2013 to argue about whether the 2008 ruling should stand.

Orange County Judge Steve Jewett said in court last Monday he felt the ruling is "very close" and was "cautiously optimistic" it could come in time for a 1:30 p.m. July 31 hearing.

Jaeger pointed out in court that the last time the judges ruled on the issue the state appealed it, but then the state dismissed its own appeals so the issue was not resolved.

Jay told Local 6 the appeal was dropped prior to Jeff Ashton taking over at the State Attorney's Office and that the person who handled that appeal is no longer with the office.

"For a long time after that under the former administration the state was just stipulating the breath test results out," Jay said, adding that Ashton's administration is determined to appeal if the county judges rule in favor of the defense this time.

Judge Jewett pointed out in court that the defense attorneys are likely to appeal if the ruling is in favor of the state.

"Whichever way it goes, whatever it turns out, they're not going to resolve it, because one side or the other is going to appeal it," Jewett said.

Once the appeal ultimately reaches the 5th District Court of Appeal, the result would create binding precedent across Central Florida, and throughout the entire state, as long as there's no conflicting opinions in Florida's other district courts of appeal.

But that doesn't mean the intoxilyzer wars will end -- and that's something on which both sides agree.

"There will always be a new battle," Jay said.