Sarasota and Manatee Judges Have Rulings Upheld On Breath Test Inadmissibility In DUI Cases Handled By Finebloom And Haenel

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A recent ruling by Florida's Second District Court of Appeals concerning the Intoxilyzer 8000 breath test machine has upheld previous rulings in Sarasota and Manatee Counties that the results from these machines cannot be used as evidence until the manufacturer turns over the machine's source code. CMI, Inc. appealed to the Second District Court that the source code is a trade secret but the appeals court disagreed. There are 100's of DUI cases in the balance that were dependent on the blood-alcohol reading from the Intoxilyzeer 8000 including some cases being handled by the Law Firm of Finebloom & Haenel.

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This argument that the source code needs to be protected as a trade secret does not hold water as Defendant's simply want their expert to look at the code and order's have been crafted to protect CMI's interests

The biggest legal news in the Sarasota DUI community over the past five years has been the inadmissibility of breath test results from the Intoxilyzer 8000 due to the manufacturer’s reluctance to make the source code the machines use to determine a person’s blood-alcohol level available to defense attorneys in Manatee and Sarasota, which includes the lawyers at the Law Firm of Finebloom and Haenel. The rulings by judges in Sarasota and Manatee counties have left more than 100 DUI cases in limbo according to the Bradenton Herald, as their decisions were appealed. The Second District Court of Appeal has now ruled in favor of these judges in Case No. 2D09-5502 upholding their decision to throw out the breath test results unless CMI, Inc. turns over source code for those breath test machines.

CMI, Inc. is a Kentucky-based company that manufactures the breath test machine. They have refused to turn over the source code claiming to the Second District Court of Appeals that the code is a trade secret and the company has refused to comply with subpoenas according to court documents released on the court's website. That failure to comply may no longer be an option now that the Second District Court of Appeals has backed judges in Sarasota and Manatee.

“This is a huge ruling by the Second District Court of Appeals,” said DUI attorney Darren Finebloom who has handled numerous cases involving the source code for the Intoxilyzer 8000. “The Court specifically held that Defendant's in the State of Florida have a right to subpoena the source code from the manufacturer of the breath test machine used in the State of Florida. The manufacturer CMI argued it is a Kentucky Corporation and moved to quash the subpoenas for the source code. CMI argued that the code is a proprietary secret and should not be disclosed. The court correctly followed case law precedent and held CMI is a corporation with a registered agent in Florida and does business in the State of Florida.”

Many cases that center on the Intoxilyzer results have already been settled or dismissed as the state cannot prove the case against the Defendant without being able to admit results of the breath tests. Making things more difficult for the state is the fact that other jurisdictions have not followed the lead of the judges in Sarasota and Manatee meaning law enforcement in most other counties around the state are still using the Intoxilyzer 8000 and are able to get those breath test results admitted into court.

CMI can appeal the decision again taking the case to the Florida Supreme Court or the company can try to work out a way to turn the information over to the court with certain guarantees in place that will protect their proprietary information. According to the lawyer for the company as reported in the Sarasota Herald Tribune, CMI has not yet made a decision on how it will proceed.

“This argument that the source code needs to be protected as a trade secret does not hold water as Defendant's simply want their expert to look at the code and order's have been crafted to protect CMI's interests,” said Finebloom. "If defense experts were able to review the code they would better be able to determine if the machine is working properly.”

The original ruling stems from a case against 43-year-old Janet Landrum. Landrum was fighting her 10th DUI in 2008 where she blew a .112 and a .108. It was at this time her defense attorney challenged the Intoxilyzer 8000 saying the machine was not the version approved by the Florida Department of Law Enforcement and the source codes for both versions of the breath test machine would need to be turned over to prove that fact. The FDLE is sticking by the company and saying it has no plans on changing to a different machine, which could open up challenges to the results and convictions in counties all over Florida.

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Elliott Finebloom

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