If you were arrested for DUI recently and blew into the breath test machine, the results of that test might ultimately become inadmissible in court. From tampabay.com:
She (The breath test operator) continued, “I resigned my position because there was a breach of security in my office.”
Hyslop, a former Hernando County judge, was stunned.
She said that on numerous occasions since the Hernando Sheriff’s Office took over the jail in August 2010, deputies had entered her office without permission and had moved items, tampered with instruments and opened and viewed evidence without her authorization or knowledge.
That would violate the Florida Administrative Code, which states that evidentiary breath test instruments must be accessible only to people issued licenses by the state. The rule serves to protect the chain of evidence.
“I put my resignation in because I could no longer sign a breath test affidavit in good conscience that everything was true and accurate because I don’t know who was touching the instruments,” she said later, according to documents obtained by the Times.
Now, the article goes on to State that the Sherriff’s office has done an internal investigation and so far, the investigation shows no gross behavior or wrongdoing on the part of the jail. So the stories conflict as to what happened. Although it should be noted that the breath test operator made these allegations at a deposition. Meaning, after swearing under oath to, “tell the truth, the whole truth, and nothing but the truth”.
Legally: What this Means For DUI Cases
Legally the fear for the State is that a DUI Lawyer writes, files and holds a hearing on a Motion in Limine asking for exclusion of the breath test result because the State cannot prove “substantial compliance” with the administrative code. It goes like this: 1. Law Enforcement would love to have blood results to show alcohol intoxication, if any, 2. Blood results are impractical, so we need a substitute, 3. Breath test results are the next best thing, but they are just a little bit on the hokey end, so 4. They need to be “scientifically valid” some way or another, so we write an adminsitrative code with some rules and regulations that the operators and inspectors must comply with when dealing with the machine. But it appears, 6. The operators and inspectors and whoever else decided to disregard the rules and procedures, so 7. The breath test results in (case open right now in Hernando County) are not in substantial compliance with the rules, so 8. Judge, you gotta throw them out.
Now, even if this happens, it is not neccessarily fatal tot he States case because even without breath results, the State is free to to use other evidence gathered before the results to try to prove up its case (think bad driving and video of DUI exercises). However, losing a breath result, especially a high result, can be difficult for the State to overcome.
It will be interesting to see how this plays out. Certain DUI Attorneys with good videos and driving patterns but breath test results over the limit may go for the gold, trying to get the case dismissed either by the State doing it voluntarily or by motion in front of the Judge. Other DUI Lawyers who may not have the best of facts (think accident, plus falling over drunk, plus bad breath test result) might try to use this issue as leverage to work out a reduction of the charge to a reckless or otherwise. Either way, it will be fun to see how it all plays out.
Under category: Breath Test DUI | August 31st, 2011 | 1 Comment »
