Should I blow or should I say no
Written by Moses & Rooth on October 10, 2014
As a DUI criminal defense attorney I can say hands down the most common question I get from clients, friends, and really anyone I meet is: “Should I take the breath test?” The best answer to that question is “Don’t drink and drive” but I guess most people are looking for the second best answer.
In Florida if you are arrested for a DUI, you are taken to the breath center and the arresting officer is going to ask you to blow into the Intoxilyzer 8000. The “Intoxilyzer 8000” is the approved breath test machine that Florida requires those arrested for driving under the influence to blow into in order to determine their blood alcohol level. If you decide to refuse to take the test, the officer is suppose to tell you that your license will be suspended for one year for a first refusal, and 18 months if you have previously refused to take the test.
So what should you do? Take the test and provide a result for the government or refuse the test and be subject to a longer period of license suspension.
In Orange County, Florida there has been quite a bit of litigation regarding the “Intoxilyzer 8000”. A machine that supposedly provides results of your blood alcohol level should be subject to scrutiny. However, Florida has consistently argued the code and programming should not be subject to verification and independent testing and has refused to allow any type of transparency. Well the Judges in Orange County disagree with the prosecutors.
The County Court Judges in Orange County have found that defendants who blew into the Intoxilyzer 8000 are entitled to the source code for all software versions of the Intoxilyzer 8000. The Judges also stated that if defendants are refused access to these materials then prosecutors will be prohibited from introducing any of their results at a trial.
The rationale behind this decision is lengthy but well reasoned. Too many results were being generated that did not make any sense. Too little data was being provided by the State of Florida in order for experts to determine the accuracy of the results.
This new Order must be considered when deciding “Should I blow or should I say no”.