Legislature Steps in to End Intoxilyzer Battle
By: Chris Kramer
After court battle after court battle, it appears that the Florida legislature is taking the issue of breathalyzer source code out of the hands of the judicial system.
For more than a year, a battle has raged over access to the source code of the Intoxilyzer 5000, then used universally across the state of Florida and heavily in at least 19 other states. Challenges arose in other states as well, but the Florida cases were particularly sticky because of a provision in Florida law that required disclosure of "full information about the test" in DUI cases.
Several Florida judges ordered prosecutors to produce the source code, agreeing with DUI defense attorneys' arguments that they couldn't effectively evaluate and respond to the evidence against their clients without being able to submit the accuracy of the testing mechanism to expert witnesses.
Prosecutors were unable to comply with those orders, as the manufacturer of the device insisted that the source code was proprietary and refused to reveal it. That led to mixed responses from judges in varying parts of the state: in some counties, Intoxilyzer 5000 results were excluded as evidence in case after case. In others, judges rejected the challenge.
The specific issue regarding the Intoxilyzer 5000 is dying out naturally-most departments are replacing the device with the newer Intoxilyzer 8000, a portable machine that records results and acts like a mini-computer, printing test results, scanning driver's licenses, and more.
The Florida legislature, however, wants to make sure this issue doesn't arise again. The position of lawmakers is virtually unanimous. The bill to amend current statutes to make it clear that source code of breathalyzer machines is not accessible to the defense passed the state Senate 36-3, and then sailed through the House with a unanimous 113-0 approval. All that remains is the signature of Florida Governor Jeb Bush.
The law addresses the conflicts that arose in the Intoxilyzer cases in two ways. First, it clarifies exactly what information must be disclosed to the defense with regard to a breathalyzer test. The statute has been expanded to list specifically what information must be made available. Another provision specifically indicates that certain information-information that would include source code-is not included in the definition of "full information".
Some defense attorneys suggest that the new law violates due process, but the decisions in the Intoxilyzer cases to date indicate that argument won't be particularly successful. Meanwhile, challenges begin to the Intoxilyzer 8000, the new device from the same manufacturer that is becoming the norm for breathalyzer testing in Florida and other states.