Defendants put the drunken driving test on trial

Laura Barfield spends a lot of time these days swinging around Florida in her state-issued Chevy to defend the technology that the state uses to catch drunken drivers.

As the state's chief defender of the breath-testing Intoxilyzer, her job is to assure everyone that the most challenged of all forensic tests is accurate and reliable. In recent weeks, she has been called to testify in Sarasota, Hillsborough and Port St. Lucie counties. In the weeks ahead, she has dates with courtrooms in Taylor, Lake, Leon, Pinellas and Escambia. It has gotten to the point where the state's breath-testing machine is never not in litigation.

"It's never going to go away," Barfield says. "It's always going to be something."

The technology has evolved over 73 years, but it's more vulnerable to legal challenge than ever. Partly because of doubts about the Intoxilyzer, prosecutors have struggled to get convictions in some counties. Judges in two counties won't even allow Intoxilyzer evidence.

This month, an attorney representing more than 100 accused drunken drivers and their attorneys asked county judges in Sarasota and Manatee counties to stop relying on it altogether.

Barfield, who works for the Florida Department of Law Enforcement, says there is nothing wrong with Intoxilyzers if they are used correctly. Lawyers target it, she says, because that's what lawyers do.

But like the people it puts in the county jail, the Intoxilyzer's reputation is getting trashed and its future is fuzzy.

• • •

The first breath-testing machine was called the Drunkometer. It debuted one summer day 73 years ago after a three-car pileup on an Indiana roadside.

A man named Roy Gordon blew into a balloon that was attached to a glass tube with purple chemicals. The chemicals turned amber and a contraption with buttons and gauges measured the equivalent of seven shots of 80-proof whiskey.

Just like that, the country's first drunken driving case was born.

Professor Rolla N. Harger at the Indiana University medical school had created the breath-testing machine in 1931. It operated under the premise that alcohol could be measured in the air inside the lungs.

The idea was so novel that everyone wanted to try out the Drunkometer. In Kansas City, police had 57 men get drunk and tested them behind the wheel of a car. News reporters downed shots of whiskey, stumbled around and blew into the machine. Then they wrote stories.

There were naysayers back then too — allegations that the Drunkometer's results could be altered by cheese, bananas, cloves, peppermints. One officer ate a pound of raw onions and another a large hunk of garlic. None of this apparently registered on the device.

By 1948, some 80 cities across the United States were hooking up drivers to Drunkometers. Back then, a person was considered impaired with a blood alcohol content of 0.15 (today that limit is 0.08), and it was generally accepted that six shots of whiskey or six bottles of beer was too much to drive.

In 1954, the Breathalyzer arrived. It relied on chemical oxidation and photometry. It was more accurate at revealing how much alcohol was in the breath and, thus, the blood.

But the attacks continued. One Ocala prosecutor vowed to stop using it after he found a big gap between the results of one man's breath alcohol test and his blood alcohol test. "I'm a prosecutor, not a persecutor," he said.

Later came the Indium Crimper. It actually saved the air sample in a soft metal container so defense lawyers could test it.

And here we are today with the Intoxilyzer 8000, descendant of the Intoxilyzer 5000. It looks like a gray tackle box and costs $5,975. You blow into a long black tube and a digital result pops up on a screen.

It relies on infrared spectrometry and measures the breath at two wavelengths. The more alcohol in the breath, the more the infrared light is blocked.

But it sure has left a lot of openings for those pesky defense attorneys.

• • •

If anyone in Florida knows the Intoxilyzer, it's Venice lawyer Robert N. Harrison. He has been poking holes in Florida's drunk test for more than a decade.

Harrison's argument: It's trial by mystery machine.

The Intoxilyzer spits out two alcohol content readings every time someone blows into the machine. Yes, the machine performs a control test before and after the person blows. But there's no way to be sure, Harrison says, that those results are accurate.

The 40 pieces of data that go into generating the reading? Deleted.

The range of results, like a margin of error, that is typically part of every scientific procedure? Not part of the equation.

The computer program that tells the machine how to operate? Not available.

CMI Inc., the manufacturer of Florida's Intoxilyzer, refuses to turn over what it says are trade secrets. They have offered to let attorneys review the machine's software at their offices in Kentucky. Nothing more.

As a result, the Intoxilyzer has become inadmissible in Orange and Osceola counties. In a handful of other counties, prosecutors have to bring in extra witnesses who can testify about the accuracy of the Intoxilyzer.

Judges have been divided over whether defense attorneys and their DUI clients are entitled to the Intoxilyzer's computer code. But the 2nd District Court of Appeal recently ruled that defense attorneys are entitled to it here in Florida. This has prompted DUI lawyers across the state to start asking for it.

Last week, Harrison asked five county judges from Sarasota and Manatee counties to stop relying on the Intoxilyzer. If the judges agree, prosecutors there will be forced to rely solely on the observations of police officers and witnesses.

"If the judges rule in my favor," Harrison said, "it could be monstrous."

There could be other factors at work, but DUI convictions have fallen in Florida. Across the state, DUI arrests fell 12 percent between 2002 and 2009.

But convictions dropped 24 percent — from 48,305 to 36,872.

Those numbers may be affected by the fact that many cases are tied up by legal challenges.

Erica Arend, a prosecutor in the judicial circuit that includes Sarasota and Manatee counties, acknowledged that prosecuting DUI cases has been challenging for many years. Convictions were down in both Sarasota and Manatee counties.

"Many of the cases have been tied up in appeal for four or five years while the attorneys litigated over the Intoxilyzer," she said. "Witnesses memories faded and many cases had to be reduced."

• • •

All this legal maneuvering over the Intoxilyzer has created a cadre of "experts" who speak for or against the breath-testing machine in court.

Exhibit one: Stephen F. Daniels, 52, who testifies against the Intoxilyzer all over the country.

His testimony in Sarasota? That all that data that Florida's machines neglect to provide is available on Intoxilyzers in Ohio, Oregon and Arizona.

Daniels' route to Intoxilyzer expert is an interesting one.

In 2004, he was pulled over for DUI on Clearwater Beach.

He says a faulty breath test doomed him. Though he'd had two rum and Cokes, he said he regurgitated right before the Intoxilyzer test was given to him at the jail and this tainted his test. A jury must have thought his test was a good one though, because he was convicted of DUI.

He lost his driver's license and his job as a corporate manager at a car dealership. He shot through nine attorneys who he says didn't understand his case. In an attempt to fight for himself, he studied everything about the Intoxilyzer. He took classes to become an Intoxilyzer operator. He subpoenaed hundreds of hours of video of officers giving the Intoxilyzer at county jails. He studied how the Intoxilyzer worked in other states. He started his own company. He called it D.U.I. Undo Consultants.

"I've devoted my life to finding out as much about this machine as I could," he said.

Daniels is still fighting his conviction. But seven years later, DUI clients pay him $1,250 a day for his testimony in court. Thirty-eight people have hired him so far this year, and the list is growing.

Times researcher Shirl Kennedy contributed to this report. Leonora LaPeter Anton can be reached at lapeter@sptimes.com or (727) 893-8640.

Treasure Island resident Stephen Daniels is an expert witness against the Intoxilyzer. He began studying the machine and the procedures after he was convicted following a 2004 DUI arrest.

LARA CERRI | Times

Treasure Island resident Stephen Daniels is an expert witness against the Intoxilyzer. He began studying the machine and the procedures after he was convicted following a 2004 DUI arrest.

Defendants put the drunken driving test on trial 03/25/11 [Last modified: Sunday, March 27, 2011 12:48am]

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