Sarasota County prosecutions, verdicts in legal limbo

Assistant State Attorney Earl Varn has asked the courts not to accept any pleas on DUI cases involving the new Intoxilyzer 8000 breathalyzer.

"We would ask the court to enter a not-guilty plea," Varn stated in a memo to Sarasota County Judge David Denkin, "and set any new cases for a pretrial date."

Varn stated that his office needs more time to review the 8000's reliability.

Venice attorney Robert Harrison has been at the forefront of the breathalyzer challenge.

"It is actually a very smart and prudent move by the state," Harrison said. "Right now anybody who has been convicted or pleads guilty has the possibility of coming back and saying, 'I entered a (guilty) plea (after the breathalyzer results) but the state didn't tell me they were having problems with it."

According to Laura D. Barfield, Florida Department of Law Enforcement Alcohol Testing Program Manager, the machine will post unreliable results if the subject does not blow a minimum of 1.1 liters of breath into the machine within three minutes.

The software is not instructed to report a "Volume Not Met" flag, Barfield stated, if the subject breathes less than 1.1 liters of breath into the machine.

Holding pattern

In a letter to the Sarasota County Sheriff's Office, which operates the county's five breathalyzers, Barfield claims FDLE "discovered" the volume problem when, in fact, Harrison's research was responsible for uncovering the issue.

"If the state found it and didn't tell us," Harrrison said, "that could be an even bigger mess which could have civil rights implications."

FDLE is responsible for breathalyzer operations in Florida.

Barfield also wrote that the anayltical functions of the 8000 are not affected by the volume issue. She said there will be a software revision to correct the volume problem.

Barfield said the volume problem only showed up in a "small number of breath samples."

Harrison said FDLE has discovered at least 189 cases of Intoxilyzer 8000s reporting "suspect" volume results.

"If somebody registers a .277 and they didn't blow into the machine (an incident supported by FDLE's own data)," Harrison said, "that is indefensible."

Harrison said breathalyzer evidence is not the only evidence used in DUI cases.

Several hundred DUI cases in Sarasota County alone are in a holding pattern until the Intoxilyzer issues can be resolved.

link