Fla. Supreme Court won’t review DUI machine Source Code Ruling – Subpoena for Intoxilyzer Source Code Upheld

By DUANE MARSTELLER – dmarsteller@bradenton.com

MANATEE — The state’s highest court has opted not to enter the legal fray over an alcohol-breath test machine’s computer source code.

The Florida Supreme Court declined to review an appeals court decision that a Manatee County Circuit judge properly allowed defense attorneys to subpoena the Intoxilyzer 8000’s manufacturer for the code. The high court didn’t give a reason for its Jan. 26 denial, but said it would not reconsider the decision.

Defense attorneys praised the court’s action Monday, saying it puts further pressure on CMI Inc. to turn over the code after years of refusing to do so. Prosecutors and law-enforcement agencies say nothing has changed as a result of the decision, and they will continue to use the machine to arrest and prosecute intoxicated drivers.

A Coral Gables attorney for CMI, based in Owensboro, Ky., did not immediately respond to a telephone call and e-mail seeking comment.

It’s the first time the high court has weighed in on the years-long legal battle over the code, which stems from an Ellenton woman’s 2008 DUI arrest. Janet Landrum, then 43, was charged with her 10th DUI after blowing a .112 and a .108, well above the .08 legal level, according to the arrest report.

Her attorney, Mark Lipinski, sought the code in hopes of getting the breath test results thrown out.

He and other defense lawyers in Florida contend the code will show machines currently being used are different from the one that was approved for use in the state.

Rejecting CMI’s argu- ment that the code was a protected trade secret, Circuit Court Judge Diana Moreland allowed Lipinski to issue a subpoena.

CMI then appealed, but the Second District Court of Appeal upheld the subpoena. CMI then appealed to the Supreme Court.

“They made the right decision,” Lipinski said of the high court’s action. “This has been lingering around in the appellate courts for too long. I’m glad the (Supreme) Court said enough’s enough.”

The case now is back in Manatee County Circuit Court, and the next move is up to CMI, Lipinski said. But he said he doubts CMI will hand over the code because of the latest ruling.

A prosecutor said she also doesn’t expect the company to change its stance. That means prosecutors will continue to offer evidence and testimony during DUI trials that establish the machines’ accuracy and reliability, said Erica Arend, the Sarasota County misdemeanor division chief for the State Attorney’s Office.

“It doesn’t change anything for us,” she said.

Nor does it for the Florida Department of Law Enforcement, which certifies the machines and the officers who use them. “We think the instruments are operating correctly and effectively in the state of Florida,” spokeswoman Heather Smith said.

Duane Marsteller, Herald staff writer, can be reached at 745-7080, ext. 2630.

Read more: http://www.bradenton.com/2011/02/08/2938461/dui-battle-is-back.html#ixzz1DNYwJmWy

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