Jupiter defense attorney challenges thousands of DUI cases
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.