FLORIDA COURT RULINGS DISALLOW USE OF INTOXILYZER 5000.

             Florida Courts faced with a defense request for access to the computer software coding of the Intoxilyzer 500- BA machine, have ordered the release of said information.  CMI, Inc. the Ky. manufacturer of  the Intoxilyzer 5000 BA machine has refused to provide this information and hundreds of DUI cases have been dismissed in Florida as a result.

       We have provided the KAR, KRS and latest court ruling to provide background on the requirements of Ky. law with regard to the introduction of a BA test.   In a recent case, Billingsley v. Commonwealth, then District Judge Stan Billingsley conducted a suppression hearing in which a representative of CMI, Inc. appeared and testified under oath that “they did not provide operating instructions for the Intoxilyzer 5000 as configured for use in Kentucky.”  The Kentucky Courts have not squarely addressed the issue of CMI, Inc. not providing operating instructions as required by statute. This issue is rather striking since the legislature has clearly required the operating instructions to be provided, but the courts have ignored without discussing this issue.

KRS 189A.103  Kentucky statute requiring manufacturer to provide “instructions for operation of the BA machine.”

500 KAR 8:030.  Kentucky Administrative Regulation re: administration of BA tests.

FOUNDATION FOR ADMISSION OF KY. BA TEST Commonwealth v. Roberts, Ky., 122 S.W.3d 524, 528 (2003

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Article published Nov 4, 2005
Surprise court ruling threatens to nullify results of DUI tests

By paul.quinlan@heraldtribune.com

(What the judges said: "Full information should include the software that runs the instrument. Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains ... nothing more than a 'mystical machine' used to establish an accused's guilt.")

VENICE -- In a decision that could throw out the use of alcohol-breath test results in Sarasota County drunken-driving cases, a panel of judges ruled that defendants are entitled to inspect the source code of the breath-testing machine's software, though the manufacturer has refused to divulge it.

Three Sarasota County judges surprised prosecutors Wednesday when they sided with Venice defense attorney Robert Harrison by giving the state 15 days to produce the machine's source code for the defense.

The catch: the Kentucky-based manufacturer, CMI Inc., has refused to turn over the code -- the electronic instructions that drive the machine -- calling it a trade secret.

Prosecutors, who are considering an appeal, say the company's refusal leaves their hands tied in the 157 DUI cases for which the order now applies and whose attorneys received copies of the Wednesday motion.

The order, prosecutors say, threatens to nullify breath test results from the Intoxilyzer 5000, which police statewide use to measure whether a driver's blood-alcohol content exceeds the .08 legal limit. Those results can often be one of the most damning pieces of evidence introduced in a DUI case.

"We're disappointed with the result. It seems to be an effective suppression of all the breath tests," said assistant state attorney Jason Miller, who fought the motion. "We don't have the information that the court has ordered us to get. We can't get the information that the court has ordered us to get. If we did, we would comply with the judge immediately."

Attorneys close to the case expect the state's attorney to appeal. In the meantime, police will continue to the use the test despite the deadlock over source code.

The decision also reverberated across the Internet on forums and techie Web sites, whose users hailed it as an important step forward in the legal crusade to open up the inner workings of other government computers, such as voting machines. By 8 a.m. Thursday, 12 hours after posting a link to the court order, a local blog, veniceflorida.com, logged a record 13,000 hits.

The ruling isn't the first of its kind in Florida. Last November, judges in Seminole and Orange counties decided to exclude Intoxilyzer 5000 breath-test results from hundreds of cases. But judges in two other Florida counties have ruled otherwise, upholding prosecutors' arguments that they can't turn over something they do not possess and that the code itself is immaterial to the DUI cases.

CMI, the manufacturer, has "been consistent in defense of their trade secret," said assistant state attorney Miller. "We're really unable to provide a secret of theirs."

The order would allow the company to turn over the machine's source code under a protective order that would keep the information from the public record.

CMI refused to comment Thursday.

In the court's 11-page order, the judges cite a Florida law that requires that someone who is tested by a machine be granted "full information" about the test upon request. The ruling represented a broader interpretation of a phrase that has, in the past, applied primarily to manuals and electronic schematics.

"Full information should include the software that runs the instrument," reads the order, signed by county judges David Denkin, Kimberly Bonner and Judy Goldman. "Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains .... nothing more than a 'mystical machine' used to establish an accused's guilt."

The judges ruled that a look at the source code was material to the case, based on photographic evidence that showed visible differences in the arrangement and number of erasable and programmable memory chips inside Intoxylizers now in use throughout Sarasota County.

An expert witness testified that without the source code, he would be unable to determine whether any changes or modifications had occurred.

"It may be something innocuous," Harrison said. "It may be something nefarious."

Other nuances within the code, such as how and when the machine rounds numbers, could provide fodder for the defense of accused drunken drivers who test on or near the legal limit.

"When you do a case-by-case analysis, there will be certain cases where the loss of a breath test isn't a big deal," Harrison said. "There's other cases, where, if you take out the breath test, they've got nothing."

Prosecutors have 15 days to appeal the ruling or produce the machine's source code. Attorneys close to the case expect an appeal, which could go before 12th District Circuit Judges within the county or to the state's 2nd District Court of Appeal in Lakeland. It would have little direct effect on cases outside of Sarasota County, though a Manatee County judge joined the three Sarasota judges in hearing the arguments.

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Florida Courts Debate Admissibility of Breath Tests in DUI Cases
December 19, 2005

News Summary

Florida court battles over the software used in breath analyzers are threatening the admissibility of blood-alcohol level evidence in driving under the influence (DUI) cases, the Wall Street Journal reported on Dec. 16.

Defense lawyers in eight counties have challenged the reliability of breath analyzing instruments made by CMI Group, demanding to see the original source code that determines blood-alcohol levels used as evidence against their clients. CMI contends that the information is proprietary, a "trade secret" that must remain concealed, according to Allen Holbrooke, outside attorney for CMI.

One state appeals court ruled last February that the defense was entitled to "full information" about these tests in order for the evidence to be admissible in court. Later, a ruling that applied this decision to CMI's source code resulted in the discarding of 1,000 breath tests from Seminole County court cases this year. Sarasota County will have to dispose of the tests used in 156 DUI cases if CMI continues to withhold the information.

"One should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," wrote the Florida Fifth District Court of Appeal.

"If we're determining guilt by machine, we have to take into consideration that there are isolated computer glitches that could affect the test," argues Stuart Hyman, a Florida criminal-defense attorney. CMI may have made substantial modifications to the software without obtaining state approval, he contends.

"My feeling is that what's going on in Florida is the defense is going on a fishing trip," says Rankin E. Forrester, the CEO of Intoximeter, a rival company of CMI. Intoximeter includes a mechanism in its breath analyzers showing that the software has not been modified.

The problem could be solved with a simple nondisclosure agreement to protect the information once it is handed to the court, says John Fusco, chief executive of National Patent Analytical Systems Inc., another rival company.

"The instruments are checked for accuracy and reliability, and in most states that's good enough," says Bill Scholfield, CMI's manager of engineering. The products of CMI's rival companies may be used if CMI continues to be uncooperative, however, and if the litigation begins to affect business, "then we'll probably have to do something," Scholfield admits.

"The ramifications [of this litigation] could be extreme," warns Donald Hartery, assistant state attorney in Sarasota County. "It could effectively suppress every breath test in Florida, and if other states went that way, every breath test in the U.S."

As many as 95 percent of DUI convictions rely at least in part on breath test evidence, experts say. Although CMI's products are used in 41 states, the legal issue has so far only taken hold in Florida, with courts in four counties backing defendants' challenges to the software.

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KRS 189A.103 Consent to tests for alcohol concentration or substance which may impair driving ability -- Test procedures -- Who may administer - Personal testing.

3) The breath, blood, and urine tests administered pursuant to this section shall be

administered at the direction of a peace officer having reasonable grounds to believe

the person has committed a violation of KRS 189A.010(1) or 189.520(1).

(a) Tests of the person's breath, blood, or urine, to be valid pursuant to this

section, shall have been performed according to the administrative regulations

promulgated by the secretary of the Justice Cabinet, and shall have been

performed, as to breath tests, only after a peace officer has had the person

under personal observation at the location of the test for a minimum of twenty

(20) minutes.

(4) A breath test shall consist of a test which is performed in accordance with the

manufacturer's instructions for the use of the instrument. The secretary of the Justice Cabinet shall keep available for public inspection copies of these manufacturer's instructions for all models of breath testing devices in use by the Commonwealth of Kentucky.

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                       FOUNDATION FOR ADMISSION OF KY. BA TEST

Commonwealth v. Roberts, Ky., 122 S.W.3d 524, 528 (2003).

 The Court's holding, according to relevant cases, statutes and administrative regulations, was that the foundation requirements for admission of a breath test are as follows:

[26]    1) That the machine was properly checked and in proper working order at the time of conducting the test.

[27]    2) That the test consist of the steps and the sequence set forth in 500 KAR 8:030(2).

[28]    3) That the certified operator have continuous control of the person by present sense impression for at least twenty minutes prior to the test and that during the twenty minute period the subject did not have oral or nasal intake of substances which will affect the test.

[29]    4) That the test be given by an operator who is properly trained and certified to operate the machine.

[30]    5) That the test was performed in accordance with standard operating procedures.

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500 KAR 8:030. Administration of breath alcohol tests and chemical analysis tests.

RELATES TO: KRS 189A.103

STATUTORY AUTHORITY: KRS 15A.160, 189A.103

NECESSITY, FUNCTION, AND CONFORMITY: KRS 189A.103(3)(a) requires the cabinet to promulgate administrative regulations establishing procedures for administering breath alcohol tests and chemical analysis tests of blood and urine. This administrative regulation establishes procedures for administering those tests.

Section 1. The following procedures shall apply to breath alcohol tests:

(1) A certified operator shall have continuous control of the person by present sense perception for at least twenty (20) minutes prior to the breath alcohol analysis. During that period the subject shall not have oral or nasal intake of substances which will affect the test.

(2) A breath alcohol concentration test shall consist of the following steps in this sequence:

(a) Ambient air analysis;

(b) Alcohol simulator analysis;

(c) Ambient air analysis;

(d) Subject breath sample analysis; and

(e) Ambient air analysis.

(3) Each ambient air analysis performed as part of the breath alcohol testing sequence shall be less than 0.01 alcohol concentration units.

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