Sun Sentinel Broward Edition

Jupiter defense attorney challenges thousands of DUI cases

- By Ben Wolford Staff writer

Thousands of DUI cases could be upended if a Palm Beach County defense attorney successful­ly challenges the use of Florida’s only approved alcohol-testing device.

The petition, filed recently in a Tallahasse­e administra­tive court, alleges the Florida Department of Law Enforcemen­t failed to follow its own rules about how the Intoxi- lyzer 8000 must be approved for use by local law enforcemen­t officers across the state.

It’s a new angle of attack on an old target. The device has been heavily challenged in Florida and Ohio for years because of concerns about its accuracy.

Now Brian Gabriel, a Jupiter attorney representi­ng 185 Palm Beach County drunken-driving defendants, is bringing a different challenge. He says state regulators did not adhere to a testing requiremen­t for one of the Intoxilyze­r’s sensors. Nor did they seek reapproval of the device after manufactur­ers made substantia­l changes to the design, he said.

“If they say the rules are invalid, that makes it a whole lot easier in criminal court,” Gabriel said.

He hopes a favorable administra­tive ruling will convince criminal court judges to toss the Intoxilyze­r 8000 results as evidence and thwart the prosecutio­n of his DUI defendants. The ruling in Tallahasse­e, which may not be decided for several months, could have statewide implicatio­ns, Gabriel said. Some prosecutor­s aren’t convinced. Even if Gabriel is successful, they said, DUI cases could still go forward on the weight of other factors, such as field sobriety tests or the observatio­ns of police officers and deputies.

In 2011, law enforcemen­t officers in Flori-

da tested 40,682 DUI suspects and 273 boating-under-the-influence suspects with the Intoxilyze­r 8000, the FDLE reported in a year-end review.

The Intoxilyze­r uses an infrared sensor to calculate the blood alcohol content. In Florida, it’s illegal to dr i ve wit h blood containing more than .08 percent of alcohol.

“The Florida Department of Law Enforcemen­t is confident the Intoxilyze­r 8000 is operating correctly and providing accurate breath alcohol results,” said agency spokeswoma­n Gretl Plessinger in a statement, declining further comment because of the pending challenge.

“FDLE has a rule requiring calibratio­n of the instrument and a rule governing changes or modificati­ons to the device,” Plessinger said. “The Intoxilyze­r 8000 has withstood multiple challenges and claims, including these issues, by defense attorneys and continues to prove itself reliable.”

The challenges have come from all sides.

Defense attorneys in Florida for years have been arguing that the Intoxilyze­r 8000 spits out unreliable readings because of glitches in its cutting-edge technology. Last year, lawyers on the Gulf Coast began demanding the Kentuckyba­sed vendor, CMI, Inc., to turn over the computer code that powers the Intoxilyze­r’s readings. The company has fought turning over the informatio­n, which they say is a trade secret.

An attorney for CMI, reached by phone and email, did not respond to questions about Gabriel’s challenge.

Newspapers in English

Newspapers from United States