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DUI suspects fighting charges by going after breath-test device

DUI suspects fighting charges by going after breath-test device

Defense lawyers seek information about the Intoxilyzer that the firm refuses to reveal.

By Curt Anderson
Associated Press

MIAMI - Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken-driving case: They sought computer programming information for the Intoxilyzer alcohol breath-analysis machine to see whether his test was accurate.

Their strategy paid off.

The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A county judge tossed out Muldowny's alcohol breath test - a crucial piece of evidence in a driving under the influence case - and the ruling was upheld by an appeals court in 2004.

Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.

"Any piece of equipment that is used to test something in the criminal justice system, the defense attorney has the ability to know how the thing works and subject its fundamental capabilities to review," said Flem Whited 3d, a Daytona Beach lawyer with expertise on DUI defense.

Widely used device

The Intoxilyzer, manufactured by CMI Inc. of Owensboro, Ky., is the most widely used alcohol breath-testing machine in the United States and is involved in the vast majority of these legal challenges. It is the only testing machine used by law enforcement agencies in 20 states, including Florida, and is used by at least some police agencies in 20 other states, according to the company.

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