Jacksonville DUI Breath Testing Being Challenged as Unconstitutional

The fight continues by Jacksonville DUI defense attorneys and those across the state who are fighting the breath testing equipment that has been shown to be faulty.

As two recent newspaper articles have recently commented on, Florida’s breath machine, which is certified by the Florida Department of Law Enforcement, has come under fire for producing incorrect results for drivers charged with DUI in Jacksonville and throughout Florida.
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With so much on the line — from criminal penalties such as jail time, fines and fees and DUI School enrollment to personal penalties, including humiliation, job loss, problems with family and friends — law enforcement ought to ensure these defendants get a fair trial. That includes using proper equipment.
When a person gets arrested, it should be based on sound information and evidence, not faulty machines that either have been manufactured incorrectly or not calibrated by police officers.

But as the Sarasota Herald-Tribune reports, breath machines have been producing impossible results that have been used to convict people. For instance, in some cases, a person would blow 10 to 12 liters of breath into the machine. That may not sound like much on the surface, but consider that the maximum lung capacity is 5 liters. That means the machines are inherently flawed.

Prosecutors in Sarasota and Manatee counties recently threw out breath testing evidence in more than 100 cases because of problems with the results that were being displayed.

In Naples, The News-Press reports, attorneys have been attacking the breathalyzers used exclusively by law enforcement — the Intoxilyzer 88000 — saying that the law is unconstitutional. Attorneys have fought for years to get the code used by the Intoxilyzer’s Kentucky-based company. It’s the only area of law where defendants don’t have access to evidence.

By not allowing defendants to view what makes a breath machine tick, they are having a major piece of evidence withheld and the law allows for the defendant to be able to analyze any piece of evidence that is brought against them in a criminal trial.

A Naples judge is expected to soon hear the argument that the state’s DUI law is unconstitutional based on the faulty breath test results and the defendant’s right to have the source code for the machines that lead credence to police DUI arrests.

That prosecutors on the state’s west coast have already begun throwing out the results of these faulty tests shows that change may be coming. That is a big step. That a judge will consider argument about the issue is another positive sign for defendants.

Hopefully, Jacksonville prosecutors will step up next and do the right thing. They work hard for convictions, but they must keep in mind that the trial should be fair and not tainted with inaccurate evidence.


The Forbess Law Firm has been aiding clients who face criminal charges in Jacksonville for more than a decade and is here to provide aggressive criminal defense to anyone accused of a crime. If you or a loved one requires a Jacksonville criminal defense lawyer, contact our firm today. We are available through our website or by calling us at 904-634-0900.

More Blog Entries:

Jacksonville Mayor’s Spokesman Charged With DUI: September 16, 2011
Additional Resources:

Florida’s DUI law challenged, by Denes Husty III, The News-Press
Prosecutors drop breath-test machine evidence in 100 DUI cases, by Todd Ruger, Sarasota Herald-Tribune