Florida Breathalyzer Controversy Close to Resolution


The ongoing controversy surrounding the Intoxilyzer 5000 breathalyzer machine is drawing to a close-last week, two Florida judges heard arguments on the issue of the necessity of access to the source code in evaluating the accuracy of the machine. DUI defense attorneys had argued that unless they knew exactly how the machine worked, they were prevented from challenging its validity or effectively employing experts to analyze its results.

As of that date, more than 400 Florida defendants had challenged Intoxilyzer 5000 evidence on the theory that they and their attorneys needed access to the breathalyzer device's source code. Intoxilyzer manufacturers maintained that the source code was proprietary, and declined to produce it after prosecutors were ordered to make it available.

Initially, the issue looked as if it might impact DUI prosecutions across the country, since more than twenty states employed the Intoxilyzer 5000 in some or all jurisdictions. Florida, where the initial challenges arose, used the device uniformly across the state. The technical nature of the issues has rendered the case difficult, and the two judges hearing this most recent round of arguments are reported to have conducted additional research to familiarize themselves with the technical terminology.

It's possible that more than four hundred Florida DUI defendants-and scattered other defendants-will see their cases dismissed in the wake of this case. However, many jurisdictions have already made the switch to using the newer Intoxilyzer 8000, a breathalyzer device that the manufacturer says will not be subject to the same challenges as the Intoxilyzer 5000.

Thus, it seems unlikely that this litigation will have a lasting impact on breathalyzer-dependent DUI prosecutions, except in that manufacturers and law enforcement agencies may be more careful to avoid such issues from the outset.

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