Basic Civil Procedure

A long held principle of American civil procedure is that when a person or corporation (what lawyer calls a "non-natural person") is that when they act in any significant fashion within the geographical borders of a state then they are subject to the jurisdictions of the courts of that state.

Along comes CMI, Inc. the company that manufactures the Intoxilyzer 8000. An attorney in Sarasota, Florida by the name of Robert Harrison has filed a motion asking the court to issue a subpoena tuces tecum--which is Latin for "bring with you under penalty of punishment"--commanding CMI to produce the source code. So far every judge in Sarasota County has issued such a subpoena. So far each time CMI has failed to respond in any fashion whatsoever to the court orders. CMI has not appeared for any court hearings pertaining to the orders. CMI has not even hired an attorney to appear for the hearings or file responsive pleadings to the court orders (although CMI has since hired an attorney although as of today neither he nor CMI appeared in a court hearing for such an order).

Why has CMI failed to even respond? CMI argues the court has no jurisdiction to order the production of the source code. CMI has sold over 300 Intoxilyzer 8000 Breath Test devices that in total cost the tax payers of the State of Florida millions of dollars. CMI wants the benefit of selling their products here, but don't want the responsibility of responding to orders issued by Florida judges.

In excess of .08 grams per 210 liters of breath . . .

These days people talk about someone being "above an 08" they generally have no idea what that means.

Hearken back to the days we were all in elementary school. When we all learned about decimals in mathematics we were told that the number immediately to the right of the decimal point was the value "tenths." The number immediately to the right of tenths was "hundredths." The number immediately to the right of hundredths was "thousandths." For example, .203 would be read "two hundred three thousandths."

Another way to describe that value would be in the form of a fraction. The value can be represented thusly 203/1000.

So the value .08 that so many people commonly call an 'oh-eight" is eight hundredths of a gram. Does that really help anyone understand what being above an oh-eight means? Let's flesh it out some more.

A gram is a small unit of measurement. Just over twenty-eight grams equals one ounce. As a means of comparison a single serving packet of Nurtasweet weighs .458 ounces or just under 12 grams.

As for the other part of the measurement of .08 grams per 210 liters of breath what exactly does 210 liters look like? Consider that a bottle of Coca Cola is 2 liters. Fifty-five bottles of Coca Cola equals 210 liters. Also, 210 liters is the equivalent of 55.45 gallons. If you're familiar with a fifty five gallon drum than you have some idea of what he volume is.

Do we now know exactly what .08 grams per 210 liters of breath is?

Yes and no.

We know that it is a very, very small measurement. We know that the machine is looking for an amount that is 162 times smaller than the contents of a single serving packet of Nurtasweet while floating around in a 55 gallon drum of breath.

What we still don't know is exactly what that means.

How is that possible?

The new Intoxilyzer 8000 has done something that defies the laws of physics and all conceivable methods of deductive reasoning. It has gathered breath samples from people who were arrested for DUI--and as aside the law in Florida requires that someone first be under arrest before a police officer can even request that the person take the breath test--conducted an analysis of the person's breath and produce a breath test result.

Well, what's the big deal with that? Isn't that exactly what a breath test machine is supposed to do?

The problem is that quite a few of those breath tests based the conducted analysis and result whatever it may be upon a breath volume of 0.000 liters of breath.

That's right folks people are being prosecuted for the offense of DUI using evidence that cannot possibly be accurate and reliable.

For those interested in seeing this result for themselves I direct you to this website maintained by my colleague Robert Harrison of Sarasota, Florida.

This breath test includes a result in excess of .20 gram per 210 liters of breath.

Who in their right mind would willingly submit to a breath test when the machine can produce a result when absolutely no breath at all actually was introduced for analysis?

Oh and something we'll discuss next time is just what exactly does .08 grams per 210 liters of breath mean?

"I SAID WE DON'T HAVE IT!"

While I don't think Laura Barfield (director of the Implied Consent Program for the Florida Department of Law Enforcement or "FDLE") actually said that or anything similar to it in that tone, she has consistently denied in the two plus years Florida criminal defense attorneys have been attempting to get the source code for the Intoxilyzers (which were manufactured by CMI, Inc of Waynesboro, Kentucky) that the FDLE does not have access to it. The position she has taken along with the FDLE is that the source code is a trade secret and it belongs exclusively to CMI.

Florida courts have mostly ignored the repeated arguments by Florida criminal defense attorneys that the FDLE should not be rewarded for negligently contracting away their ability to maintain control over and possession of the source code. State Attorney Offices all over the State seem to scoff at the notion the FDLE could contract to maintain possession of and control over the source code for the Intoxilyzers.

Well, bless my stars and garters! The Florida Department of Corrections negotiated with the manufacturer of the new GPS ankle monitors they are using to own the rights to all of the source code written for the use of the devices.

The Source Code Fight

The Florida Department of Law Enforcement (FDLE) is the State Agency responsible for maintaining the Implied Consent Program. The Implied Consent Program concerns the use of breath and blood tests in the prosecution of DUIs.

In laymen's terms what this means is this agency decides what breath and blood tests are used in DUI cases; what electronic and computer devices are purchased in aid of the tests; the maintainence and calibration of those devices; how those tests are administered; and how those tests are interpreted in a DUI case.

Can any other agency, group or organization have more power regarding DUI prosecution than the FDLE?

One would think that a part of the government--and let us not forget that in the United States the government is "by the people, of the people and for the people"--with such authority and responsibility would diligently observe every requirement placed upon it and work to ensure that breath and blood tests were as accurate as they possibly could be. Afterall, the liberty of human beings is at stake.

So then why is it that the head of the Implied Consent Program, Laura Barfield, appears to be doing everything in her power to deny those accused of committing DUI with the opportunity to know if the machines--the Intoxilyzer 5000 and 8000 manufactured by CMI, Inc.--are indeed accurate and reliable?

Florida DUI

Very soon this blog will be home to ongoing DUI law in the state of Florida.