Setting Aside 10 Years Of Florida Dui Convictions?

The Intoxilyzer 8000 is the evidentiary breath testing instrument utilized by the

State of Florida to determine breath alcohol concentration in DUI prosecutions. The Florida Administrative Code sets forth the regulations that must be followed by the Florida Department of Law Enforcement with regard to the approval for use of breath testing methods and instruments. Prior to 2002 there were procedures constantly in place for the modification of breath testing instruments which were required to be followed by the Florida Department of Law Enforcement.

In 2002, the Florida Department of Law Enforcement evaluated and authorized the Intoxilyzer 8000 to be used inside the State of Florida. The State of Florida sent several individuals to the manufacturer's location in Kentucky to oversee the customization process of the Intoxilyzer 8000. In the customization process, it has been alleged that the machines continually failed to properly register alcohol concentrations in many, if not the majority, of the test runs conducted with the Florida Inspectors in the manufacturers headquarters.

Multiple alterations were made to the Intoxilyzer 8000 in an effort to fix the problem. Eventually, Florida Inspectors along with the manufacturer concluded that, in order to make the machine register alcohol concentrations properly, a tiny hole needed to be drilled into the exhaust purge valve on the machine. Every Intoxilyzer 8000 in use by police departments inside the State of Florida includes a hole drilled in the exhaust purge valve.

The Florida Department of Law Enforcement never conducted a study as to the what impact a hole drilled into the exhaust purge valve may have on the machines readings. Furthermore, it's undisputed the Florida Department of Law Enforcement didn't comply with the Florida Administrative Code rules for modification of the breath testing equipment before placing the Intoxilyzer 8000 into use. As such, all breath tests in DUI cases since 2002 have been on machines that were never properly approved to be used in the State of Florida.

There are many motions to suppress and/or exclude pending on this issue in DUI cases in the State of Florida. The motions all seek to exclude the State from presenting evidence that was obtained using a machine that was never properly approved for use in DUI cases. In all of these DUI cases, the Defendants have submitted a sample of their breath to be analyzed.

What about DUI cases where the Defendant refuses to supply a sample? Florida Law states that in order for there to be a refusal triggering a 1 year license suspension, the Defendant must refuse to submit to an approved breath testing instrument. If the breath testing instrument isn't approved, not only would the Defendant keep his license, but the State would be prohibited from raising the issue of the refusal in the DUI prosecution. A second refusal to submit to a chemical test in a DUI stop is considered a criminal offense. If the State has already conceded the instrument was not properly approved for use, it seems as if those criminal charges should be able to be dismissed by the Judge for lack of probable cause.

All of those issues are future looking, but what about the past? The Intoxilyzer 8000 has been in use in Florida for the past 10 years. How many thousands of people have been convicted of DUI, at least in part, by evidence obtained from a machine which was never properly approved for use?

Florida provides a method by which individuals wrongly convicted may move to have their DUI conviction set aside. Florida Rule of Criminal Procedure 3.850(b)(1) permits anyone who has been convicted of a crime to set aside their conviction based on facts now known that were unknown to the Defendant or counsel for the Defendant at the time of the conviction. Florida Law provides a 2 year limitation for filing the motion to set aside a conviction based on this information. It seems as if this may be the right type of scenario for a post conviction relief motion.

If you have been arrested and/or convicted of a DUI in Florida and have been effected by the use of the Intoxilyzer 8000, you should contact a Florida DUI Attorney to discuss your legal rights.

by: magicmichael2

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