In an interesting development, the Orange-Osceola State Attorney’s Office has filed a motion to have a judge disqualified from several pending DUI cases because Orange County Judge C. Jeffrey Arnold has indicated that if Florida DUI attorneys request source codes for the Intoxilyzer 5000, he will direct that the codes must be provided. The Intoxilyzer 5000 is the only approved breath test device that is approved for use in Florida DUI prosecutions. The source codes provide information on how the device works. However, the company that produces the devices refuses to provide the source codes based on the grounds of trade secrets creating serious problems for prosecutors in Florida DUI cases. Over two hundred cases have already been dismissed because of the failure to provide source codes.
Judge Arnold has indicated that he does not plan to recuse himself. Judge Arnold has indicated that he is merely avoiding re-litigating the issue because Florida appellate court decisions and rulings of other judges have already established that DUI defendants are entitled to access to the source-code information. He has indicated that his statements regarding requiring the source codes in future cases merely saves taxpayers money and reduces cluttering the court’s docket by re-litigating the issue.
The battle over the admissibility of Intoxilyzer 5000 results and the refusal of the manufacturer of the device CMI Inc. to provide the source codes continues to provide an effective defense strategy in Florida DUI cases. Prosecutors now face the prospect of having to proceed on DUI cases without breath test results. This means that if there are no other chemical results, such as a blood test, the prosecutor must rely on officer observations, patterns of erratic driving behavior or field sobriety testing (FSTs). A driver also is not required to submit to FSTs.
If a driver refuses FSTs and any breath test results are excluded, this generally leaves nothing more than officer testimony regarding red water eyes, slurred speech and the odor of alcohol along with any observed erratic driving is the only available evidence. Erratic driving can be the result of many other things including driver fatigue, illness and other factors. Watery eyes can also be the result of many other factors including allergies. The odor of alcohol establishes nothing other than a driver may have consumed something with alcohol. Cough syrup contains alcohol and may generate an odor of alcohol. More importantly, consumption of alcohol prior to driving is only illegal if the amount of alcohol is above a certain level.
Ultimately, our experienced Florida DUI defense attorneys will challenge Intoxilyzer results, officer observations, FST results and the police procedures involved in your stop and subsequent arrest. We will fight to get your Florida DUI charges dismissed or substantially reduced. If you are facing pending Florida DUI charges, contact our Florida DUI attorney today so that we can help you start rebuilding your life.
