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Florida State officials have made modifications to breath machines and their software for years. Courts have looked the other way until now.
For years the breath results in DUI cases were admitted into evidence and shown to a jury with no scientific evidence presented in court as to the machine's accuracy. Recently, a Florida Driving Under the Influence court ruled that the State Attorney must establish the admission of an Intoxilyzer Breath Test result. Prosecutors must use the traditional scientific predicate to introduce breath test results from Intoxilyzer 8000 in a trial. The court ruled that it could not determine whether the modified Intoxilyzer 8000 used in Florida was same machine / instrument approved by NHTSA ( National Highway Traffic Safety Administration ) for use in Florida.
Complete Text of the Opinion
State v. Garcia, ( 20th Cir Aug 20, 2014) (appeal of consolidated county court cases).
This interlocutory appeal represents twenty-six Collier County appeals that have been consolidated into one because they involve identical issues regarding the Intoxilyzer 8000, appealed from identical non-final orders issued in each of the county court cases by a single judge. We have jurisdiction pursuant to Fla. R. App. P. 9.030(c). Appellate review of a trial court's ruling on a motion to suppress is a mixed question of fact and law. State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D267c]. “The trial court's findings of fact are presumed correct and will be reversed only if they are not supported by competent, substantial evidence.” Id. at 18. The appellate court's review of the trial court's application of the law to its determination of facts is de novo. Id. We affirm the decision of the trial court.
Appellants presented two issues for appeal after the trial court denied suppression of the breath test results and required the Appellants to establish the traditional scientific predicate prior to admitting the results at trial. As to Issue I, whether the Appellees sustained their burden of proving that the State of Florida did not perform the breath tests in question on an approved breath test instrument, thereby depriving the State of the benefit of the implied consent law, we affirm the trial court's ruling without further discussion.
As to Issue II, whether the trial court erred in ordering the State of Florida to establish the traditional scientific predicate in order to introduce breath test results at trial, this Court holds that: (1) the trial court made the correct legal conclusion that FDLE regulations required that the Intoxilyzer 8000 be in continued compliance with NHTSA's model specifications; and (2) competent substantial evidence supported the trial court's ruling that the State was required to establish the traditional scientific predicate. In its initial brief, the State requests that this Court rule on whether the modified Intoxilyzer 8000 is the same instrument as the one listed on the NHTSA conforming products list. However, the Appellate Court has no authority to make such a factual finding. Farneth v. State, 945 So. 2d 614 (Fla. 2d DCA 2006) [32 Fla. L. Weekly D65a] (holding that a fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact).
The State further asks this Court, if it were to find that the modified Intoxilyzer 8000 was a different instrument, whether FDLE must resubmit the device for retesting in order to continue to use the machine. However, this issue misstates the trial court's ruling. In its Order, the lower court did not exclude the use of the breath test results; rather, the lower court ordered that the State must establish the traditional scientific predicate in order to introduce the results at trial. In addition, the lower court did not order that the State must resubmit the machine to NHTSA.
The determination of whether the State showed substantial compliance with the Implied Consent law is a factual finding by the trial court. The appropriate standard of review for factual findings is whether the findings are supported by competent substantial evidence. The trial court did not err in concluding that the State failed to demonstrate substantial compliance with the Implied Consent law. The trial court ruled that it could not determine whether the instrument was the same as the one approved for use in Florida in light of all of the modifications that occurred and the fact that those modifications were not reported to NHTSA. The presumption of correctness is strongest when reviewing a judgment based upon factual findings of the trial court. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass'n, Inc., 949 So. 2d 347 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D605b]. The trial court's ruling on Issue II is affirmed.
Accordingly, we AFFIRM. (CARLIN, STEINBECK, M.O., and VOLZ., JJ., concur.)
Tinkering with Intoxilyzer 8000 Breath Machines used in Florida DUI Prosecutions may be over.
Exposed: Cops Sharing DUI
Suspect's Intimate Photos
A developing story claims that Highway Patrol Officers are demanding passwords, opening suspect's phones, and then sharing photos with fellow officers. The photos may be of a woman in various stages of undress. Standby for update.
"Taken from the phone of my 10-15x while she's in X-rays. Enjoy buddy!!!"
DUI Cell Phone Search
Initial reports allege that the police gained access to the suspect's phone during DUI arrest and investigation and then sent the photos to themselves and possibly to others. To cover tracks, the cop then deleted the history of the file transfer from the phone, according to a report we have seen. The caper was was caught when a suspect noticed the activity on her iCloud account. The transfer of the files was logged and deletion from the phone was not a good tactic to prevent her from finding this.
Other cops may be involved. It is alleged that it was a practice to share suspect's surreptitiously-obtained photos with other officers.
Contra Costa Times now reports that a Search Warrant has been issued to investigate this scandal. There are text messages between cops, including one that expressed disappointment that there was an arrest, a search, and no nude photos found.
One Lawyer has commented, "If you enjoy nude or half-nude photographs of yourself, keep them on your cell phone. If arrested for California DUI, and a cop decides to forward those photos to his or her phone, your lawyer can probably move to dismiss the drunk driving charges no matter how high your blood alcohol level is."
Just spotted and photographed the latest addition to the Sheriff's Office "Big Brother is Watching" arsenal - two trunk-mounted Automatic License Plate Recognition Systems have now been installed on some marked (photo) and unmarked cars.
Automatic License Plate Recognition System
The system has a camera on each side that optically character recognizes a license plate, then compares the license number to massive databases containing the license status of the registered car owner. According to Thomas M. Manson "Every now and then, a technology comes along that changes the way we do business. Automatic license plate recognition (ALPR) systems will revolutionize law enforcement procedure by providing officers instant information about their contacts via the automobile license plate."
It is expected that a single cop could process hundreds or thousands of plates per shift. The databases will be searched, including the FBI's NCIC database for wanted vehicles or plates, for stolen vehicles, for wanted felons, people with outstanding warrants, or outstanding traffic citations.
Manson reports, "Scott McCallum, system analyst for Pinellas County Sheriff's Department in Florida, manages data processing for several of his agency's ALPR units. He addresses its success at reading the variety of national plates, 'We can pretty much read any plate in the U.S. As long as it's a standardize[d] plate with a maximum of seven characters, we're not going to have an issue reading it.'"
The Cost: A two-camera ALPR system currently costs between $20,000 and $25,000.
"When it comes to going out and drinking with friends, most students are capable of securing a designated driver. But according to a USF study, most of these students are putting their lives in the hands of 'less drunk' rather than 'sober' drivers."
"A group of public relations students, led by assistant professor Kelly Werder, conducted surveys and focus-group research for the Tampa Alcohol Coalition and found most USF students think a DUI has the same consequential impact as a speeding ticket. "