The Law Offices Of Kevin J. Pitts
The seriousness of DUI related accidents, injuries and death is well publicized and drunk driving has had a dramatic effect on many families. What is often overlooked is the impact an arrest can have on innocent drivers. According to the government’s own tests in 1981 a thirty-two percent (32%) false arrest rate in the overall statistics for a breath test of .10%. Development and Field Tests for DWI Arrests, DOTHS 805, 864 (Tharp, Burns & Moskowitz, March 1981). The 1998 study showed that the Gaze Nystagmus test had the highest correlation of accuracy when compared to the actual measured breath test level of 0.08 percent. In this regard, the Gaze Nystagmus test showed 65% correlation to the actual measured alcohol concentration level Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent, DOTHS (Stuster & Burns, August 1998). The problem with the Gaze Nystagmus test is that only a handful of officers in Central Florida are qualified to perform the test. This test is difficult for trained doctors to perform in an office setting and is much less relevant at night on the side of the road with strobing take down lights. There are approximately 40 known causes of nystagmus. Other causes of nystagmus are diet, heredity, fatigue, eyestrain, multiple sclerosis and influenza (flu). This is just a partial list. Even consumption of aspirin, caffeine or nicotine could lead to a false positive HGN test.
Plug And Pull
The breath test machine also has had an embarrassing series of issues from inaccurate flow sensors, inaccurate inspections, cover ups and lost documents. FDLE formed policies and procedures to ensure accuracy. They have a tendency to amend the rules when they find them difficult to comply with. Some of the famous embarrassments include the plug and pull which was a mechanism to avoid the machines going out of service for failing accuracy inspections. If the machine started to fail a second consecutive inspection the agency inspector would simply un plug it to delete the data before it is saved.
The next inspection manipulation is based on triggering a fake radio frequency interference detect (RFI). If the machine failed the first inspection the second inspection would be initiated. If it started to fail the second inspection the inspector would simply make a call with a cell phone. This would trigger a RFI detect and abort the test. They could pass it off as an officer forgetting to turn off a radio and manipulate the machine to keep it in service hiding the inaccuracies. The RFI detect shows up in the public records but it is difficult to prove that it was done to cover up the inaccuracies. A tell tail sign is that the RFI detect is proceeded by a non-compliant test. I would be concerned that foul play is occurring any time the inspection following a non-compliant inspection shows RFI detect.
In 2009 FDLE purchased the equipment to begin testing for flow sensor accuracy. Matthew Malhiot was the only FDLE Department Inspector who began testing whether the flow sensors were able to return accurate readings. FDLE did not implement any “informal” procedure for testing the flow sensors until August of 2010. The way those tests are being implemented is largely a mystery to criminal defense attorneys who have access to nothing other than field notes and repair records showing the fact that the flow sensors had to be “recalibrated” or replaced with new parts. The problem with flow sensor inaccuracy is two-fold. First to get an accurate sample you must know the volume. If the volume is inaccurate the entire sample could be inaccurate. Second is that Florida law requires a breath volume sample of 1.1 liters of air. This should be achievable for most people but if the sensor is not accurately calculating breath volume it could cause false refusals. If a proper sample is not obtained including insufficient volume the officer will mark the test as a refusal. The refusal carries more severe administrative consequences, can be used as a consciousness of guilt argument and can result in additional criminal charges if the driver has a prior refusal.
Access to the source code is key. Without it, a Breathalyzer is a black box that can determine a defendant's guilt without being subject to independent scrutiny or evaluation. Inspection of the source code can discover programming mistakes or even intentional skewing. CMI has fought to keep the source code form the defense attorneys. When defense attorneys finally gained access to the source code CMI basically said their dog ate their homework. The loss or destruction of the source code conceals the inner workings of the machine and also makes it impossible to see if the current machine is the same or even similar to the approved machine for breath testing in Florida.
Other Breath Test Issues
The breath test machine has also had incidents of fake repairs being noted to avoid non-compliance. The machine has had modifications performed that would make the machine deviate from the original approved version. The time can be altered to get around the 20 minute observation period jeopardizing accuracy. This is not a complete list of breath test issues but is just a brief summary of some of the highlights.
The .08% Myth
Many people believe that if you are under .08% breath alcohol content you are safe from arrest. That couldn’t be farther from the truth. The reality is once you are arrested you will stay in jail for 8 hours or until your breath alcohol content is below .05% and your normal faculties are no longer impaired. The problem is that the reason you are in jail is because the officer believes your normal faculties are impaired. If you submit to a breath test under .08% the next thing that almost always occurs is a request for a urine test. If you do not take medication listed in the Florida controlled substance statute or illegal drugs your case will be dismissed after an arraignment and probably 2 pre-trial conferences. It usually takes 60-90 days for FDLE to get the urinalysis results to the prosecutor. If you refuse either test you will be facing a year suspension and the first 90 days will be without a hardship permit. Even with clean urine if your breath test is over .05% you might learn about the impairment theory. If you have a breath alcohol content over.05% but under .08% the state can go forward on the impairment theory. Impairment theory cases rarely go well for the state but it can get you a half day of jury selection and a day of trial. The bottom line is that the rule is no longer over the limit under arrest. It is now just under arrest.
The Hole Problem
During initial testing, the Intoxilyzer 8000 was producing results lower than what was expected. An engineer from CMI indicated that they had an idea to fix the problem. The solution was to drill a small hole in the check valve that releases gas from the sample chamber. Doing this increased the results of each breath test by .02 percent. Florida can only use a breath test machine which appears on the US Department of Transportation's Conforming Products List (DOT CPL). To appear on this list, a machine must be tested. Subsequent to testing if the manufacture makes changes, these changes are required to be submitted in writing to the USDOT. CMI, the manufacture of the Intoxilyzer 8000 did not notify the USDOT of this change. Further, although some members of the Florida Department of Law Enforcement knew of this change, a new approval study was not conducted on the modified machine. All Florida breath test results have been elevated by .02% by unapproved modifications.