Florida’s “Implied Consent law” mandates that if you “refuse” to submit to an approved breath test after being arrested for DUI, you will suffer an automatic administrative suspension of your privilege to drive. In fact, on the front of your Florida Driver’s License you will see a reference to the “Implied Consent” law. It says: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”
Florida’s courts have taken this one step further by ruling that a driver’s refusal to submit to Intoxilyzer testing can be introduced against him at trial by the prosecutor to show his “consciousness of guilt.” You will typically see this card played in closing arguments. The Assistant State attorney looks solemnly at the jury and says “ladies and gentlemen, we know why the defendant refused the breath test, in spite of the fact that his license would be suspended… (dramatic pause)… it was because he knew that if he blew into the machine, he would fail. His refusal to submit to a breath test shows his consciousness of guilt!”
On the other hand, although a refusal to submit to a breath test may carry a driver license suspension, it can also deny law enforcement the opportunity to gather additional incriminating evidence to further assist the prosecutor in securing a conviction. In cases where the underlying driving is not too bad, the accused looks decent on the video taped field sobriety tests, and he smartly avoids making incriminating statements, a “refusal” to submit to the Intoxilyzer can often provide your criminal defense attorney with an opportunity to negotiate a reduction to reckless driving. That is why, despite the threat of driver’s license sanctions, about 41% of Florida drivers arrested for DUI decline the breath test. Florida ranks third in the nation with the highest “refusal” rates.
Florida Expects Full Cooperation of Drivers Arrested for DUI
The government expects drivers to submit to breath testing and even imposes penalties for those who refuse to participate in furthering the police investigation. The approval of this practice by our courts is premised on the “legal fiction” that driving is a “privilege” and not a “right.” At the same time, it must be remembered that breath test evidence is typically accorded great weight at a DUI trial. The argument that a driver’s refusal was premised on his “consciousness of guilt” seems to fly in the face of fundamental constitutional principles. More specifically, our system of justice seems to have momentarily forgotten that the State has the burden of proof in criminal cases and that the accused neither has an obligation to prove his innocence, nor disprove his guilt.
Consider this scenario…
A local St. Petersburg resident gets out of work around 6 p.m. He and several co-workers stop by a popular sports bar for a quick beer before going home to their wives and kids. After consuming a single bottle of Budweiser, our target gets in his car and is innocently driving home. (After all, it is not against the law to drink and drive. It is only against the law to consume so much alcohol that your normal faculties are impaired, or that you are operating the vehicle at the presumptive breath alcohol level of .08 or above.) While en route home, a Clearwater police officer stops him, alleging that he “failed to maintain a single lane of travel.” The citizen complies with all of the officer’s requests that he perform roadside field sobriety tests, but to his great surprise, he is ultimately arrested for “driving under the influence.” At the police station, the driver voluntarily submits to breath testing. His cooperation is premised on his good faith belief that he cannot possibly be over the legal limit, since he only consumed a single beer. But, to his astonishment, the machine spits out a .09 B.A.C., which puts him over the legal limit.
The Standard Jury Instruction for Driving Under the Influence provides:
If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
As you can see, our driver is now faced with a presumption of guilt that is preordained by a machine. Determining the accuracy of the Intoxilyzer thus becomes paramount to achieving a just and fair determination of his guilt or innocence.
Just Trust Us…The Breath Test Machine is Okey Dokey!
What if the State of Florida or its witnesses have potentially exculpable evidence in a DUI case, yet “refuse” to disclose it? Without a sanction, such conduct certainly appears to represent a double standard. Yet, that is precisely what the the manufacturer of the Intoxilyzer 8000 has been up to for years. This breath testing machine relies upon computer software which is commonly referred to as the “source code.” This source code consists of lines of computer “language” that instructs the device on how to properly function. An elementary example of a line of code in the machine’s source code might be “IF ‘R’, THEN Display ‘REF’.” In other words, if the breath test operator presses the “R” button on the keyboard, the instrument is instructed to record the breath test as a “Refusal.”
A criminal defense attorney in Florida’s panhandle is amusingly fond of saying, “without the Source Code, the Intoxilyzer 8000 would be nothing more than an expensive paper weight.” This analogy drives home the point of just how important the source code is to the operation of the breath testing machine. Yet, police officers who routinely request breath samples typically have no idea what the source code is. In fact, most have never even seen the inside of an Intoxilyzer. This is because the rules for breath testing promulgated by the Florida Department of Law Enforcement (FDLE) prohibit any internal inspection of the mechanical and electrical components inside of the Intoxilyzer by law enforcement personnel.
Despite the critical importance of source code to the accuracy of breath testing, criminal defense attorneys in Florida have been forced to tirelessly litigate in their efforts to seek the release or inspection of the Source Code. Such requests have been met with both opposition from prosecutors and evasive conduct on the part of the machine’s manufacturer. 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
With its back against the wall and court fines mounting, late last year the manufacturer finally allowed several Florida attorneys and computer engineering experts to examine the source code for the Intoxilyzer 8000. During this controlled examination (all parties had to sign non-disclosure agreements prior to the viewing), the engineers discovered that the manufacturer was no longer in possession of the “primitive versions” of the source code. The company’s chief engineer explained that the source code notes for versions 8000.0 through 8000.13 had simply been lost. (Imagine Bill Gates saying that he had simply “lost” the computer code for the poorly received “Windows ME” operating system.)
It is important to note that in Florida, the Intoxilyzer 8000 currently runs on software labeled 8000.27. Yet, when the machine was originally inspected and approved for use in Florida by the Department of Transportation, the instrument subject to testing and review utilized one of the “primitive source code” versions. Accordingly, the source code version that was approved for use in Florida can no longer be examined by defense experts because it has been conveniently lost by the manufacturer.
Despite not having this code, the experts pushed on and continued the examination of source code versions 8000.26 and 8000.27. During this viewing, it was determined that a mechanical component of the machine known as the “Digital Signal Processor” or “DSP,” had its own source code. The defense expert timely asked the manufacturer for the opportunity to review the DSP source code. Given the past history, it was no surprise that this code was produced 50 minutes after the inspection session was over. This evasive conduct begs two questions:
1. What does the manufacturer of the Intoxilyzer 8000 have to hide?
2. Does the conduct on the part of the manufacturer suggest a consciousness of guilt?
Criminal defense attorneys continue in their pursuit of the inner workings of the Intoxilyzer 8000 and a full report by computer engineering expert, Harley R. Myler is expected shortly. In the mean time, breath testing admissibility continues to be subject to great scrutiny on the part of Criminal Defense Attorneys. There are a host of areas that an experienced lawyer can find non compliance with Florida Law.
Consider Just a Few Lines of Attack:
- Was the Breath Test Machine used in your case registered with the Florida Department of Law Enforcement pursuant to Florida Administrative Code 11D-8.003(2);
- Was the Intoxilyzer 8000 subject to annual inspections by the Florida Department of Law Enforcement each calendar year that it has been in use for evidentiary breath test collection pursuant to Florida Administrative Code 11D-8.004(3);
- Was the instrument timely checked for routine calibration by the “Agency Inspector” once per each calendar month since the machine has been placed in service pursuant to Florida Administrative Code 11D-8.006(1);
- Do the results from the calibration checks show that the accuracy of the machine is in substantial compliance with the provisions of the Florida Administrative Code pursuant to Florida Administrative 11D-8.002(1);
- Was the breath test operator properly certified to conduct evidentiary breath tests on persons accused of drunk driving pursuant Florida Administrative Code 11D-8.002(17);
- Was the person who performed the monthly inspections of the calibration of the Intoxilyzer 8000 properly trained and licensed to conduct routine maintenance checks pursuant to Florida Administrative Code 11D-8.002(5) and 11D-8.008(2);
- Was there a sufficient volume of breath sample (1.1 liters of air) introduced into the Intoxilyzer 8000 which is necessary to return a scientifically reliable test result pursuant to Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, Breath Test Operator Course, Section 3.7, Page 13.
- Were there two breath samples obtained by law enforcement pursuant to Florida Administrative Code 11D-8.002(12);
- Were the two breath samples collected within fifteen minutes of one another pursuant to Florida Administrative Code 11D-8.002(12);
- Were the numerical breath test results of the two breath samples within .02 grams of alcohol per 210 liters of breath pursuant to pursuant to Florida Administrative Code 11D-8.002(12); and
- Did the Agency Inspector and Breath Test Operator timely receive “continuing education” to renew his or her permit as required by Florida Administrative Code 11D-8.008(3) and 11D-8.008(4).
About the Author:
Criminal defense attorney Timothy Sullivan has a wide-range of practical experience in the defense of DUI cases. His background includes a focus on the specialized and unique training law enforcement officers rely upon when making a DUI arrest. As a former Pinellas prosecutor, Tim learned street-level DUI enforcement tactics from the inside. He quickly rose through the ranks of the local State Attorney’s office and was selected to run the North County Traffic court division. Tim was thereafter promoted to “Lead Trial Assistant” and supervised other Assistant State Attorneys in their prosecution of DUI cases. He went on to serve as an Adjunct Professor for the. Florida Public Safety Institutes DUI Program at Tallahassee Community College
Tim has invaluable insight into the strategies often employed by both police officers and prosecutors. He completed the same specialized DUI education and training that law enforcement officers attend by achieving certification to operate the Intoxilyzer 8000. However, his training did not end there. Tim went on to acquire “state inspector certification” necessary to review the maintenance and calibration of breath testing machines before they can become legally employed by a police department to gather evidence in DUI cases.
Tim received a scholarship from the University of North Florida to attend the “DUI Drug Recognition Expert Program.” There, he studied alongside DUI Squad Officers in the complex area of Drug-Impaired Driver detection. In addition, Tim has received advanced training in DUI Defense at the National College of DUI Defense at Harvard Law School. His intimate knowledge of his adversary’s strategies and tactics can translate into valuable insight used for the benefit of his clients in court.
If you have been charged with a DUI in St. Petersburg, Clearwater, or any area within Pinellas County, Tim Sullivan is a defense attorney well qualified to help.
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