In a long-running battle with various circuit courts in Florida, attorneys for 3 defendants have asked the Florida Supreme Court to require the company that manufacturers the breathalyzer test machines for Florida to turn over the software in order to challenge their accuracy.
The Intoxilyzer 8000, manufactured by CMI, Inc.. has been the standard for breath tests in Florida for many years now. And as long as it has been around, attorneys for defendants have been challenging its accuracy. Specifically, attorneys have been requesting the software “source code,” or the way the computer code analyzes and reports the breath test, in discovery throughout courts in Florida, and routinely denied by judges. To date, judges in the State of Florida has ruled that the defense is not entitled to the source code (firmware and/or software code) for the CMI Intoxilyzer 8000. This was because the defense in prior cases had not shown that the source code was material to the cases presented. Attorneys have since shown potential anomalies with the CMI Intoxilyzer 8000 results. If the state does not release the source code so it can be examined, and cannot provide an expert to show that the device is, “accurate and reliable scientifically,” there exists the potential that breath test results from the CMI Intoxilyzer 8000 may be inadmissible.
Despite court orders demanding release of the Source Code and the imposition of daily coercive fines for the company’s failure to so comply, there has been much reluctance to release the code. The company contends that its “intellectual property” is at risk if the source code is revealed.
Late last year CMI finally allowed several Florida attorneys and computer engineering experts to examine the source code for the Intoxilyzer 8000. During this controlled examination in which all parties were bound by a non-disclosure agreement, the experts discovered that CMI was no longer in possession of the earlier revisions of the source code. The company’s chief engineer explained that the source code for versions 8000.0 through 8000.13 had simply “been lost.” This includes the version of the source code that was approved by the FDLE.
The second issue is that since approval, the software for the machine has been altered and changed 17 times. The Intoxilyzer 8000 currently runs of software version 8000.27. This was recently questioned in Collier County, Florida which questioned the Intoxilyzer 8000’s reliability for not conforming with the USDOT Conforming Products List.
Florida’s Administrative Code 11D-8.003 states that the Florida Department of Law Enforcement (FDLE) must approve all breath test machines to assure their accuracy and reliability before used law enforcement to test breath samples. Once the FDLE approves a breath test machine, the law assumes that the machine is accurate; otherwise know and self-admitting. However, the FDLE cannot approve any device that has not also been approved by the United States Department of Transportation (USDOT). The USDOT maintains a “Conforming Products List ” of breath test machines that conform to USDOT specifications for breath test machines, which can be found in the Federal Register; 58 FR 48705.
However, CMI failed to submit for approval 16 out of those 17 modifications mentioned earlier. The Collier County judge found overwhelming evidence that CMI ignored federal law by not submitting these modifications for FDOT approval. The judge also found that the FDLE does not require CMI to notify Florida when it makes changes. The result is that CMI has modified the Intoxilyzer 8000 software 16 times without approval from Florida or the federal government.
Judge Carr wrote in his opinion that he was ”extremely concerned that [the] F.D.L.E. has given [CMI] free reign to modify the Intoxilyzer 8000 in any manner [CMI sees] fit.” He also wrote that the FDLE and CMI “have not taken the appropriate steps to ensure [the Intoxilyzer 8000’s] accuracy and reliability.” Judge Carr expressed concern that “a criminal defendant should not face conviction and possible incarceration based on secret undisclosed evidence.”
In summation, the Judge Carr found that the Intoxilyzer 8000 can no longer be presumed reliable in his courtroom. The government would have to prove that the breath test machine is accurate and reliable at trial; instead of enjoying the presumption of admissibility.
The Florida Supreme Court is set to hear oral arguments on this issue on February 5, 2013; an appeal from a decision of the 5th District Court of Appeal quashing a trial judge’s ruling for CMI to turn over the software for its Intoxilyzer 8000.