Viera firm wins right to independently test Intoxilyzer 8000

Attorney Robert Berry won chance to have breath-testing machine used by police

VIERA, Fla. - A trip to jail, a $500 fine, loss of a drivers license for 180 days, probation, DUI school, 50 hours of community service and court costs — these are some of the minimum penalties for someone convicted of driving under the influence.

At 0.08, the legal limit to be considered drunk is measured in fractions of 1 percent. After years of legal wrestling, a Viera law firm won the chance to independently test the accuracy of a machine Florida police use to collect evidence of breath alcohol content, according to Local 6 news partner Florida Today.

"Nobody gets to touch these machines other than Florida Department of Law Enforcement and local police agencies," Berry said. "If they pass all these tests, when they're being looked at critically, then good for them."

For years, the firm Eisenmenger, Berry & Peters has criticized Florida's breath-testing machine, the Intoxilyzer 8000, a device produced by CMI, Inc. based in Kentucky.

"The Intoxilyzer 8000 has been approved since 2002 and was put into evidentiary use in 2006," FDLE spokeswoman Gretl Plessinger said in an email. "The instrument is used by every law enforcement agency in Florida. The Intoxilyzer is valid and reliable and has withstood numerous court challenges by DUI defense attorneys."

Berry said his firm has approached the issue in three main ways:

• They fought in Brevard County court to have the instrument tested.

• They challenged the original 2002 approval of the current breath-testing device through the Florida Division of Administrative Hearings. The judge ruled against them, but they have appealed that decision.

• Through the same administrative process, they challenged a Florida Department of Law Enforcement procedure for testing the machines before their typical annual test. Berry's firm is also appealing a judges denial of this challenge.

Though the second two efforts are still pending, the first represents a significant breakthrough for Berry. The process began about four years ago. Berry's firm filed a motion on behalf of several clients to have the breath-testing machine independently tested.

"The state opposed that motion on every ground," said Assistant State Attorney Michelle Perlman.

Opinions differed about whether the machine could be scrutinized by the defense.

"The discovery rules allow you to have access to the evidence and do your own testing," Perlman said. "The defense has the right to do their own testing on physical evidence."

For example, if prosecutors charged someone with possessing cocaine, that person would be entitled to have an independent laboratory test the white powder for the presence of cocaine. If someone was accused of breaking into a house, they could have their own expert testify about whether the fingerprints left at the scene matched their own.

Perlman explained the state was opposed to the defense conducting testing on police equipment.

"If the defense wants to challenge what's in the report, they can challenge the methodology used or the qualifications of the operator of the instrumentation. They can challenge the qualifications of the expert witness, including the forensic lab person. They can obtain physical evidence and test it independently. But what they don't get to do is require the state to produce their instrumentation and examine it."

Berry's firm disagrees.

"The result of that machine, if believed by a jury, is enough to put you in jail," he said. "And the notation that a citizen can't get access to test that machine is pretty scary."

The fact that DUI penalties are increased if a person blows over 0.15 means it's all the more important that the machine is accurate.

Perlman said the defense hasn't shown evidence that the machines would have particular problems in the cases in question.

"The state's basic presumption is incorrect," Berry said. "The state believes that the reliability of the instrument is beyond question and that only in individual circumstances could it ever generate a bad result because of some odd thing that happened in a specific case. That's really their argument. What they're not understanding is that we're questioning the basic reliability of the instrument at this point."

Ultimately, judges sided with Berry's firm, ordering a prescribed independent test.

"Eventually, several county court judges ordered some inspection be completed," Perlman said. "The state filed an appeal and the appeal was unsuccessful. There were further hearings and two of the original judges ordered some specific testing to occur."

An independent test will be carried out at a private laboratory in Melbourne starting Monday. They'll see if the machine holds up to shaking and extreme temperatures. They'll see if the readings the machine gives for alcohol in a person's breath matches the amount in his or her blood.

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