DUI checkpoint canceled, judges issue another blow

MANATEE — Authorities cancelled a DUI checkpoint for this weekend and local judges issued an order Tuesday stating a breath test machine used by the Manatee County Sheriff’s Office does not meet state law requirements.
Defense attorneys have challenged the use of the Intoxilyzer 8000 — a machine used by Manatee County Sheriff’s Office — saying the machine was never approved for use in Florida. Manatee County judges Doug Henderson and Robert Farrance issued the order after the state was unable to prove what micron band measurement is used for the machine to measure the level of alcohol.
The order stated there was “compelling evidence” that the Intoxilyzer, while approved by the Florida Department of Law Enforcement, was not the version approved by the U.S. Department of Transportation, as required by state law. Law enforcement can only offer a breath test that is approved by the state, according to the Florida law.

In the meantime, the sheriff’s office cancelled a DUI checkpoint scheduled for July 3, said Sheriff Brad Steube.
“We cancelled the checkpoint because of all the controversy surrounding the Intoxilyzer. The problem is now when you pull into a check point, you are not observing the driving. You pull into a checkpoint and you develop probable cause from there,” he said noting examples such as the smell of alcohol or people fumbling for their license.
Steube said there are plans to appeal the order, and in the meantime, there is a strategy in the works for how law enforcement will possibly continue to use the Intoxilyzer. He would not give further details.
Instead of a checkpoint, deputies are going to saturate patrol this holiday weekend where there are high incidents of drunk driving, he said. They will be able to observe drivers swerving on the road and use videos as a part of the DUI case along with field sobriety tests.
Tom Hudson, an attorney specializing in DUI, said marginal cases will be harder to prove.
“It’s going to be the .09, .10 and .11 that are harder to prove, but when you get up to .15, you don’t need a breath test to get a conviction,” he said.
Hudson said law enforcement doesn’t necessarily look for convictions. They look to arrest people they suspect are impaired to get them off the road until the driver regains control, he said.
As a result of the order, people do not have to take the breath test, he said.
“If they tell you, you have to take it or lose or license, they are lying to you. You only have to test on an approved machine,” he said.
The Intoxilyzer machines have been challenged throughout the state by attorneys in over how the machine works, according to attorneys.
The company that manufactures the Intoxilyzer has been in court battles for several years, and the company has declined to provide computer source codes due to competitive reasons, according to attorneys.
Sarasota judges issued a similar order June 19 finding there were discrepancies in the technical specifications for the machines used in the local DUI cases, as provided by the manufacturer, according to the order.


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California Supreme Court says defendants can challenge Breathalyzer results

Accused drunk drivers now have more ammunition for challenging Breathalyzer findings as a result of a unanimous ruling Thursday by the California Supreme Court.

The ruling is expected to make drunk-driving cases more complicated and possibly more difficult to prosecute, lawyers said. Courts in two other states, Arizona and Vermont, have reached similar conclusions.

Under the law, a suspected drunk driver can submit to either a blood test, which measures the amount of alcohol in the blood, or a breath test. Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage. In California, a person is legally drunk when his or her blood-alcohol level is 0.08% or higher.

The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual's medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said.

"The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence" in certain cases, Justice Carol A. Corrigan wrote. The court's answer was yes.

Even though experts say the standard ratio used to derive a blood-alcohol concentration from breath generally approximates or even underestimates the amount of alcohol the driver consumed, they also agree that Breathalyzer results may sometimes overestimate the amount of alcohol in the blood.

Thursday's ruling permits defendants in some cases to challenge those results based on mathematical ratios.

"Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing," Corrigan wrote.

San Bernardino County Deputy Dist. Atty. Mark A. Vos, who prosecuted the case before the court, said the ruling was "going to make DUI trials a little more difficult to put on" because more technical evidence will be permitted.

"The numbers are going to be flying back and forth in DUI trials, so prosecutors are going to have to adapt," Vos said.

Jamie L. Popper, the appellate defense lawyer in the case, said the ruling will ensure that juries have the information they need to judge a case.

"The situation currently is that juries are led to believe that when a person blows into the breath test, the blood-alcohol measure that breath test gives is a fact, when all a breath test is is a measure," Popper said.

The ruling came in an appeal brought by Timmie Lance McNeal, who will not benefit from the decision because the court concluded that the jury would still have convicted him even if he had been permitted to challenge the conversion formula.

McNeal, like most drunk-driving defendants, was charged under two separate laws. One of them says a person is presumed to be intoxicated if his or her blood-alcohol level is 0.08% or higher, regardless of how it was measured.

The jury failed to convict McNeal under that law after evidence was presented that the Breathalyzer may not have been working properly. Of five breaths, the device was able to produce only two samples suitable for testing. Both registered a blood-alcohol level of 0.10%.

But the jury still convicted him of driving under the influence under a law that does not depend on blood-alcohol levels. That law requires only proof that a defendant's ability to drive safely was impaired by alcohol consumption. The blood-alcohol measure is evidence, but not proof, of intoxication.


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