Elizabeth L. Parker, Esq.
CHALLENGE THREATENS ABOUT 300 DUI CASES The Sun Sentinel December 2009 by Brian Haas
Defendants in about 300 Palm Beach County drunken driving cases could go free if they're successful in challenging the machines used to test their sobriety. At the center of the challenge, early in 2010, is the Intoxilyzer 8000 machine, which measures blood-alcohol levels. Attorneys claim the machines aren't legal because Florida's Intoxilyzers differ slightly from federally approved models. Moreover, they say, there's evidence law enforcement personnel covered up failed inspections of the devices, calling into question the machines' accuracy. The prosecutor and law enforcement officials say the challenge is a futile ploy to get clients off the hook, and crash victims are frustrated at delayed justice. Still, DUI attorneys have lined up by the dozens behind the challenge, due to be heard Feb. 23. "If these machines are not working properly and are not maintained properly, they could very well be falsely accusing innocent people," said Ira Karmelin, a lead attorney in the challenge. In court filings, Karmelin said Florida's Intoxilyzer machines differ from the federally approved ones. Florida law requires that the two match, he said. Chief Assistant State Attorney Elizabeth Parker said all the machines are the same and that the difference is nothing more than a typographical error in the state evaluation. "It's the same exact filter," Parker said. "There's only one filter." A second filing by Karmelin accuses law enforcement officials of covering up failed inspections by unplugging the Intoxilyzers when it looked as if they wouldn't pass. Such tests are vital in proving the machines give accurate results. The Florida Department of Law Enforcement in 2008 fired a breath-machine analyst after finding she taught law enforcement officers the unplugging trick. Karmelin said his consultant, re-creating the state's method for finding the plug-pulling, found a Palm Beach County Sheriff's deputy pulled the plug on at least eight tests, and a Boynton Beach police officer pulled the plug on three tests. Capt. Patrick Kenny, traffic division commander for the Sheriff's Office, said three deputies witness every inspection. He said the agency found three pulled plugs, but had a simpler explanation: The printer cable is near the power cord, and installing one sometimes knocks the other out.
Elizabeth L. Parker, Esq. "To me it's another defense-attorney ploy," Kenny said. "The more buckshot he puts in the air, it makes him think he'll be able to hit something." Boynton Beach police had a similar response. "Defense attorneys are paid by clients to poke holes in the state's case," spokeswoman Stephanie Slater said. "We're confident the legal process will play out as designed." Similar challenges to the machines in other Florida counties have failed, Parker said. "We know they're working properly," she said. "I'm very confident that the breath tests in this county are proper, that they're admissible and that the state isn't going to lose on these motions." Meanwhile, crash victims are left in limbo. "Justice is not being served and victims are being completely alienated," said Alec Peters, 50, of Jupiter, who was injured in a Nov. 8, 2008, crash. "I want to see the court do its business in a timely, fair fashion." The man accused of hitting him, Martel Dixon, 55, of Lake Worth, has pleaded not guilty to two counts of driving under the influence. His Intoxilyzer results indicated a blood-alcohol level of around .216, more than twice the legal limit, records show. His attorney, Michael L. Cohen, said he understands Peters' frustration. "Do I feel bad for anybody who's been hurt? Obviously," Cohen said. "But he's not guilty until a court says he is."