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-
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-
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-
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-
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-
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.