So can it get worse for Laura Barfield, the director of the Florida Department of Law Enforcement’s (FDLE) Alcohol testing program? Watch the video below to hear Laura Barfield testify about problems with the Intoxilyzer 8000′s flow sensor. In the middle of her testimony she asks to retract the last 5 minutes of her testimony because she becomes confused.

Florida DUI Attorneys and their experts have been questioning the top officials with FDLE’s alcohol testing program about problems with the Intoxilyzer 8000, the breathalyzer used throughout Florida after a DUI arrest. Leading the way is Sarasota County DUI Attorney, Robert Harrison.

What’s the problem? When you blow into the machine you must blow 1.1 liters of air in one continuous breath before the machine will determine that a sufficient example exists and provide an estimate of the subjects breath alcohol content (called BrAC). You can look at the data and clearly see that the Intoxilyzer 8000 is reporting the individual blew 4, 5, 6, 7, 8, or even 9 liters of air (one even reported 16 liters of air) in one continuous breath. Basic science tells us that anything over 4 liters of air is highly unlikely. Anything with 6 liters or more is completely impossible. So the flow sensor on the Intoxilyzer 8000 instrument that calculates or estimates volume is WRONG. The instrument is not calibrated correctly because it is over stating volume.

But what about those cases in which the instrument is under stating volume? In other words, the person blew more than the required 1.1 liters of air but the Intoxilyzer 8000 reported an insufficient sample? FDLE describes it as the instrument “being really hard to blow into.” For those individuals, they will be counted as having refused to provide a sufficient sample even though they really did blow a sufficient sample. We call these cases the “machine refusal” because the refusal results from the error message reported by the instrument. The breath test operator will say the person was “faking” or “pretending to blow when really they were faking it.” Many of those people were falsely charged with DUI refusal, had a 1 year suspension of their driver’s license and may have been convicted of DUI because of a problem with the instrument. Innocent people were necessarily falsely accused.

When confronted with the implications of her testimony, Laura Barfield, retracts her previous statement. The judge says so for the last five minutes you get a “never mind”? How can the Intoxilyzer 8000 “instrument” be trusted at all if the volume of air is incorrect? If the flow is incorrectly calibrated when no reading can be trusted because we will never know whether the instrument really analyzed a sufficient sample or an insufficient sample. If we can’t trust the “volume” reading, why should we believe the other readings like the BrAC (or Breath Alcohol Concentration) result?

I’m glad Stephen Daniels with DUI undo Consultants, LLC, shared this video with me. The graphics combined with the audio are terrific.

Read more about the Intoxilyzer 8000 Flow Sensor Problems in Florida.

The Temple Terrace Police Department conducted a DUI checkpoint / roadblock on Friday night, December 30, 2011, near 56th Street and Whiteway Drive. The roadblock began at 10 p.m. Friday, and was scheduled to end at midnight. Following the roadblock the Temple Terrace Police Department scheduled a “saturation patrol” from midnight until 4 a.m. on Saturday morning, December 31, 2011.

The Temple Terrace roadblock officers will be looking for equipment violations and impaired drivers. The stated goal of the DUI roadblock / checkpoint is to conduct high-visibility enforcement operations and increase the public’s awareness of Florida’s DUI enforcement efforts. This roadblock is scheduled on the final weekend of the “Drive Sober or Get Pulled Over” campaign in Florida.

The Temple Terrace Police Department has yet to announce the number of citizens who were delayed by the roadblock or whether any DUI arrests actual resulted from the effort. If you witnessed the checkpoint then we’d love to hear about your experience. Feel free to leave a comment below.

Leslie Sammis is a DUI attorney with offices in Tampa, FL. Visit our website for more information on fighting DUI cases involving a roadblock or checkpoint under Florida law which are the most heavily scrutinized types of stops under the Fourth Amendment.

Although the officers stopped 1,034 vehicles during the roadblock, only six individuals were arrested for DUI. Those statistics are pretty amazing considering the sheer number of law enforcement officers and public resources devoted to the checkpoint. Thousands of citizens in New Port Richey were detained in the name of “DUI enforcement” and only a handful of DUI arrests were made. If those same officers had patrolled the streets looking for suspicious drivers the number of DUI arrests might have been considerably higher.

Law enforcement officers argue that the roadblocks act as a deterrent to individuals that think it is alright to drink a small amount of alcohol before driving. The man or woman who had two beers with dinner at a restaurant will be less likely to drive home if they think being detained in a roadblock is a possibility. The show of force by police is a power deterrent regardless of the fact that only a tiny percentage of individuals detained actually did anything wrong.

The Florida Highway Patrol reported that an additional 61 arrests were made for criminal or traffic offenses. Those arrests often result in vehicles being towed and storage fees being collected. The DUI checkpoint in New Port Richey in Pasco County was scheduled to start at 8 p.m. on Friday, December 16, 2011, and ended at 2 a.m. Saturday, December 17, 2011.

Challenging Checkpoints Conducted by the Florida Highway Patrol

Checkpoint cases are the most scrutinized under the Fourth Amendment. In a hearing to suppress the evidence obtained during a roadblock or “sobriety checkpoint.” The Florida Highway Patrol often organizes the roadblock or checkpoint so that it has a better chance of passing constitutional muster.

The Florida Highway Patrol has published a fourteen (14) page policy manual aimed at creating a uniform policy for conducting driver license and vehicle safety inspection checkpoints, policy number 17.07 which was first issued on February 1, 1996 and last revised on September 16, 2011.

The Florida Highway Patrol’s policy manual contains procedures for who can approve and authorize the roadblock. The policy manual also requires certain uniform guidelines to cover the procedures that members are to follow at the checkpoint, including:

• the procedures for selection of vehicles;
• detention techniques;
• duty assignments; and
• the detention/disposition of vehicles.

The policy manual requires that the guidelines be written in the form of a Checkpoint Operational Plan as illustrated in Addendum 17.07-3 to the policy manual.

If you witnessed any part of the DUI checkpoint in New Port Richey please feel free to make a comment below or contact us. We also like to network with attorneys who are representing clients involved in that roadblock to compare notes about whether the guidelines were actually followed in the field.

SB 1790 prohibited any state or local law enforcement agency from conducting a “no refusal” DUI checkpoint where a judge is present on site to issue a warrant for a blood alcohol test without the driver’s consent. On May 7, 2011, the Florida legislatures’ Senate Bill 1790 (SB 1790) died in the judiciary committee. The bill was introduced by Republican Florida State Senator Rhonda Storms from District 10 which covers the eastern half of Hillsborough County, as well as smaller portions of Pasco County and Polk County, Florida.

Although SB 1790 died in committee, on May 27, 2011, the Fifth District Court of Appeals in State v. Geiss, 70 So. 3d 642, 650 (Fla. Dist. Ct. App. 2011), reh’g denied (July 22, 2011), review granted, 70 So. 3d 587 (Fla. 2011), found that the plain language of Florida Statute Section 933.02 prevented blood from being drawn based upon probable cause that a suspect has committed misdemeanor DUI. The decision left open the use of warrants for forced blood draws with probably cause of a felony DUI because of the number of prior convictions (some third and most fourth and subsequent DUI’s can be filed as a felony in Florida). The Florida Supreme Court has accepted jurisdiction to decide the case.

Florida’s Current Laws on Blood Draws in DUI Cases

Florida Statute Section 316.1932 allows a law enforcement officer in Florida to request a blood test of a person who is suspected of operating a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances if that person appears for treatment in a hospital, clinic, or other medical facility and a breath or urine test is impractical.

If the suspect refuses to submit to the blood test then the arresting officer will initiate an immediate administrative suspension of the driver license for a period of 1 year for a first refusal, or 18 months if the driver had previously had their license suspended for refusing a chemical test after a DUI arrest. In other words, the legislature already provides for serious consequences in a DUI refusal case in Florida. In fact, anyone who refuses to submit to a DUI chemical test after having previously refused can be charged with a first degree misdemeanor punishable by 364 days in jail and a thousand dollar fine. So law enforcement already has all the tools it needs without resorting to forced blood draws during a roadblock or checkpoint.

Blood Draws Using “Reasonable Force” Allowed Only in Felony DUI Cases Involving Death or Serious Bodily Injury

Florida Statute Section 316.1933, a law enforcement officer with probable cause to believe a suspect drove under the influence of alcoholic beverages, chemical substances, or controlled substances and has caused serious bodily injury or death to any human being even the driver, can cause a cause a blood test to be performed, with an authorized use of reasonable force even without consent from the driver. However, that provision is limited to cases involving probable cause of a felony DUI involving serious bodily injury or death to another human being.

Current Status of Florida’s Blood Draws in DUI Cases Shows the Legislature’s Intention to Not Allow Forced Blood Draws

The driver can “refuse” to submit to the chemical testing whether it involves breath, urine or blood. Although it is hard to imagine “forcing” a suspect to provide a breath or urine sample, it is not hard to imagine forcing a blood draw. The officers can forcefully hold the suspect while a needle is shoved in the suspect’s arm. Clearly the legislature contemplated forced blood draws in felony cases involving probable cause of DUI with serious bodily injury or death. By omission the legislature made a choice that forced blood draws would not be allowed in any misdemeanor DUI case or even felony DUI cases because of two or more prior convictions.

MADD and law enforcement officials in Florida clearly wanted to get around the intention of the Florida legislature. Frustrated with the high rate of refusals to submit to a chemical test of the driver’s breath, blood or urine in routine DUI cases, MADD and law enforcement agencies throughout the country sought a way to prevent any driver from refusing chemical testing. In fact, visit the National Highway Traffic and Safety Administration’s web page on the NHTSA No-Refusal Weekend Toolkit which includes pre-event and post-event press releases, talking points, sample “no refusal” search warrants, and blood withdrawal forms. In support of the DUI “no refusal” policy, NHTSA cites DUI studies and statistics showing that the average refusal rate among states has held relatively steady with about one in four suspects declining to submit to a test. In Florida, the percentage of suspects refusing breath testing is 40%, exceeded only by New Hampshire at 41%.

Although the statutory scheme enacted by the Florida legislature made it clear that DUI “no refusal” weekend roadblocks were not allowed, local law enforcement agencies were seduced by federal incentive grant money provided under Section 163 of the Transportation Equity Act for the 21st Century (TEA-21). Additionally, roadblocks or “sobriety checkpoints” are profitable endeavors for local law enforcement agencies who can seize cars from drivers without a valid driver’s license or with illegal controlled substances in the vehicle. Additionally, towing fees, storage fees, and fines and court costs for offenses other than DUI make the roadblocks profitable.

Threats of Forced Blood Draws Would Decrease the Number of Refusals to Take the Breath Test

If a driver was told that refusal to take the breath test would result in a forced blood draw the logic was that fewer driver’s would refuse the less painful and dangerous breath test. MADD further advocated combining the forced blood draws with the DUI checkpoint or roadblock. Judges would be on standby during the roadblock to sign warrants based on an affidavit prevent in person or via fax or other electronic means by the arresting officer. NHTSA’s sample search warrant form reads as follows:

STATE OF ______
[LIST LOCAL COUNTY/PARISH/CITY/ETC]
SAMPLE SEARCH WARRANT

TO: Any Peace Officer in the City, State of

GREETINGS:

Pursuant to the Affidavit for a Search Warrant executed by _______________________________, who has reason to believe that within the person of:
RACE/SEX _______________ DOB_____________DL#______________, there exists evidence of ethanol, an alcoholic beverage or a Controlled Dangerous Substance in the breath/blood of the above described person, which constitutes evidence tending to prove the commission of the offense of Operating a Vehicle While Intoxicated in violation of [List Statute here]. I am satisfied that there is probable cause to believe that the evidence so described is located in the breath/blood of the above described person and that legal grounds exist for the issuance of a search warrant; therefore,
IT IS ORDERED THAT:

1) the affiant shall immediately and personally serve a copy of this search warrant on the suspect;
2) THE SUSPECT, PURSUANT TO THIS SEARCH WARRANT, IS ORDERED BY THE COURT TO SUBMIT TO A BREATH TEST AT THE DIRECTION OF THE ARRESTING OFFICER to test for evidence of ethanol or an alcoholic beverage;
3) if the suspect refuses to submit to the breath test as ordered by the Court, affiant (or any other peace officer) is ordered to seize the above described person and obtain a sample of whole blood in an appropriate medical setting in strict accord with medically acceptable practices by a physician, physician assistant, registered nurse, emergency medical technician, chemist, nurse practitioner or other qualified technician, as provided by law;
4) the affiant shall preserve the original executed affidavit for the search warrant and the faxed return of the affidavit and search warrant signed by the judge.

This warrant may be executed any time of the day or night, including Sunday, at any place the person is found and is directed to any peace officer who may use such means and force as necessary to obtain the bodily samples as directed in the warrant.
______________________________
Issued this _______ day of _________________________, 20___, at ____ o’clock a.m./p.m.
JUDGE
********* The suspect was given a copy of this search warrant/order on _____________________, 20__, at _____ o’clock a.m./p.m.
By:_______________________________ Peace Officer

Imagine the officer coercing the citizen into submitting to the breath test by telling him, “Look sir, you can refuse to take the breath test if you want, but see Betty over there? She’s holding that needle in her hand? If you refuse then I’ll get this prosecutor sitting here to fax a warrant application over to the judge. The judge will fax it back and then I’ll hold you down while Betty shoves that needle into your arm. It’s your choice.” And imagine combining that nightmare with a roadblock case in which the citizen’s vehicle is randomly selected for a DUI sobriety interrogation.

Florida’s DUI “no refusal” policy was explained in the bill analysis of SB 1790

According to the Department of Highway Safety and Motor Vehicles, “no refusal” DUI checkpoints, as they have been run thus far in the state of Florida, consist of a traditional DUI checkpoint with the addition of an Assistant State Attorney (ASA), blood-draw technicians
possibly being on-site with the officers, and with an on-call judge who may or may not be on-site. Once a driver is stopped at the checkpoint, the officer first must determine if probable cause exists that the driver is under the influence of drugs or alcohol to the extent his/her normal faculties are impaired. Such determinations are made by the officer on the basis of factors including but not limited to the odor of alcohol, slurred speech, blood-shot eyes, stumbling, and fumbling for his or her driver’s license. At a DUI checkpoint an officer must base the probable cause determination more heavily on these factors than he would at a routine traffic stop because usually the checkpoint officer would lack any observation of erratic driving.

Once probable cause is determined, the driver is asked to submit to a breath alcohol test. Under no circumstances would every driver stopped at a “no refusal” DUI checkpoint be asked to submit to a breath test without the requisite determination of probable cause. If a driver for whom probable cause has been established refuses the breath test, the officer will complete an application for a search warrant, which includes an affidavit of probable cause, which when approved by the on-site ASA is delivered to the on-call judge either by the officer or with an electronic file transfer. After review the on-call judge may issue a warrant. Only then could the driver’s blood be drawn for testing without consent which would include using force.

Let’s Hope the Florida Supreme Court Just Says No to the “No Refusal” DUI Policies in Florida

Let’s hope the Florida Supreme Court does the right thing in it’s review of the State v. Geiss decision. Blood draws without consent are only authorized when probable cause exist to believe that the driver is guilty of DUI with serious bodily injury or death. Having officers use needles and forced blood draws to coerce individuals into submitting to a breath test is a bad idea. Combining that nightmare with roadblocks and checkpoints in which citizens are randomly selected for further sobriety interrogations is beyond scary. How do you think the Florida Supreme Court will decide the case?

Matthew Malhiot recently published an informative article discussing the Intoxilyzer® 8000: Flow Sensor Problems in Florida.

The article describes how Florida never bothered to develop any procedure for testing whether the Intoxilyzer 8000 instruments could accurately measure the amount of air blow into the machine. As a result, the instrument may have produced unreliable breath test results for thousands of individuals who agreed to submit to a breath test after a DUI arrest in Florida.

Problems with the Intoxilyzer 8000 Instruments Maintained by the Hillsborough County Sheriff’s Office Central Breath Testing Unit

In Hillsborough County, seven of the eight instruments have been tested and “calibrated.” The problems were so bad on some instruments that the flow sensor was actually replaced. The only remaining instrument yet to be tested in Hillsborough County is still in being used to test subjects after a DUI arrest although those results should certainly be contested based on the serious problems that existed on the other machines.

What Did FDLE Know About Flow Sensor Problems and When?

The problem was so bad that even the Florida Department of Law Enforcement (FDLE) stepped in to remove at least one instrument in Hamilton County from evidential use in 2009 after problems with the way the machine measures the volume of air blow was detected. Despite knowing that the problem likely existed in other instruments, FDLE allowed other counties to continue using the instruments until each one could be “calibrated” by FDLE.

Matthew Malhiot reports that beginning in 2009, FDLE purchased the equipment to begin testing for flow sensor accuracy. Although FDLE went to the trouble to purchase the equipment to test the accuracy of the flow sensor, that equipment sat on a shelf in Tallahasse unopened. Although FDLE’s written procedures had no provisions for inspection of flow sensors, Matthew Malhiot reports that the was the only FDLE Department Inspector who began his own attempts at testing whether the flow sensors were able to return accurate readings. FDLE did not implement any “informal” procedure for testing the flow sensors until August of 2010. The way those tests are being implemented is largely a mystery to criminal defense attorneys who have access to nothing other than field notes and repair records showing the fact that the flow sensors had to be “recalibrated” or replaced with new parts.

Problems with the “volume” reading do not show up in the departmental and agency inspections developed by CMI, Inc., and FDLE for Florida’s version of the Intoxilyzer 8000. In fact, the departmental inspections and agency inspections were developed in a way that avoiding testing whether the flow sensor worked. Despite the fact that it is not hard to imagine that such a testing procedure could have been included in the administrative rules or written protocol developed by FDLE.

Secret Mathematical Calculations Within the Machine

The company that manufactures the Intoxilyzer 8000 calls the flow sensor a “pressure transducer” which takes data points showing the sample duration and pressure to estimate a flow rate. Through an unknown mathematical calculation those data points are translated into a volume reading. An accurate Breath Alcohol Calculation (BrAC) relies on a sufficient volume of air being introduced into the instrument during a sample. If the volume is not accurate or reliable than the BrAC reading cannot be accurate and reliable. Florida decided to set the minimum volume requirement at 1.1 litters of air (although other states were allowed to set slightly higher or lower requirements for this “conforming product”).

As we have previously discussed, the top FDLE officials including Roger Skipper and Laura Barfield claim not to know who manufactures the pressure transducer because they have never looked at the logo or cannot remember what the logo says. FDLE has no idea how many times CMI, Inc., has change or modified the type of the pressure transducer being used. It is unclear whether different instruments in Florida even have pressure transducers from the same third party manufacturer or whether those pressure transducers are even compatible with a breath test instrument like the Intoxilyzer 8000.

If the Flow Sensor Does Not Give Accurate and Reliable Readings then No Readings From the Machine are Accurate or Reliable

These problems mean that certain instruments incorrectly assumed that an individual who blew less than the required 1.1 liters of air had provided a sufficient sample. In other words, if you blew less than 1.1 liters of air during a sample the instrument may have incorrectly assumed that the sample was sufficient. The machine is not suppose to flag an error for any sample that is less than 1.1 liters of air which would not occur if the flow sensor was not working correctly.

It is also likely that individuals who provided a sufficient sample registered a “volume not met” reading even though a sufficient reading was provided. Those individuals may have been told that they “refused” to provide a sufficient sample when the real problem was that the the flow sensor did not work properly. Those individuals were most likely charged with “refusing” to provide a sample and were hit with an automatic one year revocation of their driving privileges in Florida.

If the flow sensor does not work properly then all of the other readings made by the instrument should also be questioned including whether slope was level or slope was met. If the flow sensor did not work properly then the instrument would not be able to correctly determine whether the reading was from “deep lung” air or merely from trace amounts of “mouth alcohol.” Individuals with acid reflex, dentures, GERD, or a number of other conditions may have returned high readings that were not accurate or reliable. Individuals with smaller or diminished lung capacities because of their age or health conditions are more likely to be impacted. Women typically submit lower volume readings and the inherent bias in the instrument against women would also be more pronounced due to this issue with the flow sensor.

Losing Faith in Florida’s Alcohol Testing Program Hurts Us All

At some point FDLE takes so many shortcuts and is involved in so many scandals and cover ups that the public loses any faith in Florida’s Alcohol Testing Programs. Innocent people arrested for DUI refuse to take the test because they know the machines do not work. Juries refuse to rely on breath test readings from the machines because of the evidence presented at trial showing these serious problems. Prolonged litigation over these issues and FDLE’s instinctive need to cover up the problem drain our criminal justice system of precious resources. The judges that must determine whether this evidence should be admitted at trial begin to question whether the instrument actually works, whether the administrative rules are adequate, and whether agency and departmental inspectors can be trusted.

FDLE and the manufacturer of the instruments have engaged in a course of conduct that involves hiding the evidence of a problem for as long as possible, losing the evidence once the problem is discovered, and arguing that the problem does not effect the accuracy or reliability of the instrument because of some “excuse” that cannot be proved or disproved without the evidence that has been hidden or destroyed. As judges are beginning to recognize the true extent of the problem more and more breath test readings will be excluded from trial. The problems with the flow sensor may just be the straw that breaks the camel’s back.

What happens when you attempt to submit to the DUI breath test in Florida and the breath test operator tells you that you were not breathing hard enough? The arresting officer will count that as a “refusal.” The allegation that you refused to take the breath test carries with it additional penalties including a one year administrative suspension of your driver’s license.

For a second refusal in Florida the driver faces a 18 month suspension with no chance of obtaining a hardship or business purpose only driver’s license. The prosecutor in the criminal portion of the DUI case can also argue that the fact that you refused is evidence that you knew you would blow over the legal limit (often called the “guilty conscience” argument).

FDLE Covers Up Problems with Florida’s Intoxilyzer 8000 Flow Sensor

Despite these harsh consequences, the Florida Department of Law Enforcement (FDLE) attempted to cover up evidence that a faulty Intoxilyzer 8000 caused many of those DUI refusals. Problems with the flow sensor mean that no matter how hard the subject blows the instrument does not properly calculating the amount of air being blown into the instrument.

A sufficient sample requires that the instrument determines that 1.1 litters of air was blown into the instrument. However, if the flow sensor doesn’t work properly then many people may be accused of refusing when they did provide a sufficient sample and could have blow under the legal limit had the instrument been working properly.

FDLE “Flow Calibrations” Confirm the Extent of the Problems

When FDLE realized the extent of the problem not only did they cover up the truth, but they attempted to drag out revealing the problem for as long as possible. FDLE’s Intoxilyzer 8000 Departmental Inspectors were instructed to stop writing down the R-factor or R-value of the instrument and instead to keep secret spread sheets. More than two years later when the extent of the problems forced FDLE to take more corrective actions, it was discovered that most of the instruments were not able to accurately estimate flow or volume. FDLE then used some secret process to “recalibrate” the instruments and the problems became worse.

Solid Evidence Now Shows Florida’s Intoxilyzer 8000 Not Accurate or Reliable

Even more problematic, if the Intozilyzer 8000 breathalyzer can not properly calculate the flow or sample duration, then the other readings from the instrument can not be trusted as accurate and reliable including the breath alcohol concentration reading (often called the BrAC). Read more about defending the DUI breath test refusal in Tampa, Hillsborough County, FL.

What’s the impact so far:

• More than a hundred breath tests on the Intoxilyzer 8000 are being thrown out in DUI cases in Sarasota County and Manatee County, FL.
• Breath tests done with the Intoxilyzer 8000 in Venice, FL, have been excluded for more than two years.
• DUI prosecutors with the State Attorney Offices in Sarasota decided to insist that law enforcement pull the Intoxilyzer 8000 machines offline so that FDLE could take additional steps to attempt to correct the problem.
• FDLE disagrees with the State Attorney’s decision to pull the breath test instruments out of service.
• Other DUI attorneys throughout the State are filing similar motions and finding identical problems on Intoxilyzer 8000 instruments used in their jurisdictions.

Not surprisingly, FDLE takes the position that this or any other problem found by defense attorneys do not affect the accuracy and reliability of the subject’s breath test results.

If you have charged with drunk driving and submitted to a breath test on the Intoxilyzer 8000 in Hillsborough County or the surrounding counties, contact an attorney experienced with fighting the DUI breath test case. The attorneys at the Sammis Law Firm have been involved in two year fight to exclude breath test instruments in Hillsborough County on the following grounds:

* The administrative rules are wholly inadequate and even those inadequate rules were not followed when the Intoxilyzer 8000 was “approved” for use in Florida;
* The admission of the breath test results violates a person’s right to confront the evidence against him because the instrument makes complicated calculations that are hidden from the defense attorney, unknown by the breath test operator or even the top officials at the Florida Department of Law Enforcement.
* The Intoxilyzer 8000 is not an “approved” breath test in the State of Florida, because at the time it was approved it had not been added to the conforming products list.
* Even assuming it had been properly approved the numerous modifications to the hardware and software after the approval process means that the instruments eventually put into service were so different that they could not longer be called “approved” instruments.
* Our criminal defense attorneys and expert witnesses should be able to photograph the Intoxilyzer 8000 instruments used in Hillsorough County at the Orient Road Jail to see whether the internal parts are the same, to see who manufactures the flow sensor and other interior parts, and to determine whether differences between those instruments used in Hillsborough County and the instruments “evaluated” by FDLE.

Our Tampa DUI Attorneys are reviewing hundreds of breath test results to determine the best way to present these problems to judges in Tampa, Hillsborough County and the surrounding counties for our existing clients.

Moreover, officials at the Hernando County Sheriff’s Office and the prosecutors at the State Attorney’s Office waited more than two months to make those disclosures to the individuals accused and the criminal defense attorneys tasked with representing them. What happened to duty to disclose exculpatory evidence?

Read the article here: 50 Hernando DUI cases could be in jeopardy due to security breach

More than 15 people who were charged with DUI over the past year entered pleas to DUI without knowing that their breath test reading might have been excluded. In many of those cases, the breath test reading is the main evidence against the person accused. In how many of those cases did prosecutors stand by without telling the judge, the person accused, or the person’s attorney about the problems with Hernando County’s alcohol testing program?

According to the article, Assistant State Attorney Donald “Sonny” McCathran said that he waited to release the information until after the Hernando County Sheriff’s Office could finish its internal affair report. How many DUI pleas were entered during that time period?

Even more troubling, how many people charged with DUI were accused of “refusing” to submit to a breath test during that time period when the Hernando County Sheriff’s Office knew it did not have a “lawful” breath test machine, breath test operator or agency inspector?

Why was Fran Greifenberger employed as an “independent contractor” when the administrative rules required the breath test operator and agency inspector to be an “employee.” Since the rules did not allow a breath test operator to be an “independent contractor” wouldn’t the court be required to exclude all of those breath test readings on the Intoxilyzer 8000?

Florida law clearly contemplates filing a motion to set aside a conviction when newly discovered evidence not disclosed by the prosecutor or arresting agency calls that conviction into question. Anything less would encourage prosecutors not to disclose the truth as they stand by silently when a plea is being entered.

Read more about our recent post about why the Hernando County DUI Breath Test Operator and Agency Inspector Resigned in Brooksville, FL.

What is going on in Hernando County? Anyone with a client charged with DUI at the courthouse in Brooksville, FL, should pay special attention to the whether the DUI breath test instrument was really “approved” and whether Hernando County even had a legitimate breath test operator or agency inspector. Unfortunately, many individuals plead guilty to DUI never knowing about problems that could result in a reduction or even dismissal of their charges.

How bad is it? The prosecutors in Hernando County have finally started sending out “Brady Notices” to every criminal defense attorney with a pending DUI case pending at the courthouse in Brooksville, FL. The Brady Notice discloses serious problems with the way DUI breath tests are being conducted at the Hernando County Jail.

One such Brady Notice was signed August 10, 2011 by Shannon J. Laviano. It states:

A copy of the below information is being provided to defense attorneys in all open/pending DUI cases, arrested before 08-01-2011, to comply with the State’s ongoing duty of disclosure and/or possible Brady obligations. Only one copy of the information listed below will be provided to defense attorneys who represent more than one DUI defenant.

1. Email dated May 19, 2011, from Fran Greifenberger to Mike Maurer re: resignation.

2. Agreement between Frances Greifenberger and HCSO.

3. Agreement between John Douglass Lowery and HCSO.

4. Deposition of Fran Greifenberger on July 7th, 2011, in relation to State v. [deleted], 2001-CF-65.

5. HCSO Interoffice Memorandum re: Administrative Inquiry; Breathalyzer Room Breach dated July 18th, 2011.

6. Video from intoxilyzer room at HCJ from May 19, 2011.

The Brady Notice includes an Interoffice Memorandum dated July 18, 2011, from Colonel Michael H. Maurer, Chief Deputy, regarding “Administrative Inquiry; Breathalyzer Room Breach.” In that memo, Col. Maurer describes the abrupt resignation of Fran Greifenberger who acting as the “Breath Test Operator and as the FDLE Agency Inspector.” The e-mail was sent to Col. Maurer, Captain Beetz, Roger Skipper (FDLE Departmental Inspector), and Doug Lowery.

According to the memo, the Hernando County Sheriff’s Office had “two machines inspected and recertified by Sergeant Lane Winters of the Pasco County Sheriff’s Office.” Roger Skipper, an FDLE Departmental Inspector, “later came to the Hernando County Jail and determined there was nothing deficient with the machines and noted no tampering of the machine.” Sgt. Kathleen Reid of the Internal Affairs Unit conducted a preliminary inquiry into any Hernando County Sheriff’s Office Police Violations. Detective Anthony Scarpati was instructed to conduct an inquiry into any criminal violation.

On May 19, 2011, the former Breath Test Operator and FDLE Agency Inspector, Fran Greifenberger, sent out an e-mail that notified Col. Mike Maurer of the Hillsborough County Sheriff’s Office of the following:

Mike:

Effective immediately I am resigning from my position as Breath Test Operator and FDLE Agency Inspector. I have been told there is a class being held this month to certify Deputies and Sergeants to perform breath testing services in Hernando County. Although no one with rank has come to us or given us notice, Detection Sgt. Stevens at the jail has been telling the Brooksville Police Officers that she will be taking over the Breath Testing Unit from me. I can no longer testify under oath to the security of the chain of evidence of the DVD recordings or the instruments for evidentiary use in accordance with [Florida Administrative] Rule 11D-8.007(1) and (2). The Detention Staff at the jail has breached security on numerous occasions and entered our locked office in violation of State Rules (see below*). Instruments have been turned off, the DVD players and camera have been moved, etc.

The severe stress that this has caused me over the last several months, has put me in a position where I can no longer in all good conscience fulfill my duties as Breath Test Operator and Agency Inspector for Hernando County. The instruments are now out of service.

These are the rules that I know have been and are continuing to be violated by the Detention Supervisors at the facility.

*State Rule 11D-8.007(1), Florida Administrative Code requires that evidentiary breath test instruments shall only be accessible to a person issued a valid permit by the [Florida] Department [of Law Enforcement, "FDLE,"] and to persons authorized by a permit holder. The purpose of this rule is to ensure that an evidentiary breath test instrument is not misused or damaged.

*State Rule 11D-8.007(2), Florida Administrative Code requires that the instrument will be located in a secured environment which limits access to authorized persons described in subsection (1).

Sincerely,

Fran Greifenberger

cc: State Attorneys Office, FDLE, John Lowrey [the other breath test operator in Hernando County, FL]

The first problem is that Frances “Fran” Greifenberger began working for the Hernando County Sheriff’s Officer on or about August 27, 2010, as an independent contractor. Such a procedure is not allowed because the Florida Administrative Rules require the breath test operator or agency inspector to be an “employee” of the law enforcement agency. Hiring an independent contractor is perform this role is not contemplated and appears to be expressly forbidden by the administrative rules. Every breath test that she performed by be suppressed because it violates the administrative rules. It appears that her status as an “independent contractor” with a w-9 goes back to at least 2005 when the Hernando County Jail was run by the Corrections Corporation of America (CCA).

The State Attorney’s Office is calling Fran Greifenberger and John Lowery “contract employees” however it is clear from the evidence that they were being treated as independent contractors with a W-9 and no benefits such as inclusion in a retirement plan.

Whistleblower Claims – Fired for Exposing Serious Problems at the Hernando County Jail

Furthermore, it appears that Fran Greifenberger and John Lowery have a claim that they were essentially fired or forced to resign because they were “Whistleblowers” who spoke out about violations of the administrative rules including unauthorized persons having access to the Intoxilyzer and unauthorized individuals tampering with the instrument, unauthorized people within the jail actually turning the instrument off on at least one occasion.

Independent Contractors are Not Employees for Purposes of the Administrative Rules

In fact, the Brady Notices being sent out to criminal defense attorneys with pending cases in the Brooksville courthouse includes a copy of the “Agreement Between Frances Greifenberger and Hernando County Sheriff’s Office” in which she was promised:

• $50.00 per test performed;
• $10.00 per hour for time spent in case preparation, transporting videotapes and other administrative tasks;
• $13.00 per hour testifying in legal proceedings when issued a subpoena, with a minimum of 2 hours paid for such;
• $15.00 per hour for inspections of the Intoxilyzer 8000 instruments as required by FDLE; and
• $1.00 per hour on call fee when no test is performed in a given 24 hour period.

The contract also contains a “confidentiality” clause that states: “Any information given to or developed by the Contractor in performance of this Agreement will be kept in confidence and will not be made available to any individual or organization without the written approval of HCSO. This provision shall survive termination of this Agreement.” A similar agreement was signed by John Douglass Lowrey on or about August 27, 2010.

Why does the contract include a “confidentiality” clause when Fran Greifenberger and John Douglass Lowery are required to give truthful testimony during formal review hearings to contest the administrative suspension of the driver’s license, motion hearings in DUI cases, and at trial?

Deposition of Fran Grefenberger Included in the Brady Notice

On June 7, 2011, the deposition of Fran Grefenberger was taken by a criminal defense attorney in which Ms. Grefenberger stated:

• she resigned because her reports of irregularities were being ignored by the Hernando County Sheriff’s Office, including complaints of unauthorized individuals entering her office and playing with the breath test instrument, the fact that the breath test instruments were tampered with and shut off, and HCSO employees pretending to give a breath test to somebody that was arrested on May 19th when no breath test operator was authorized to do so;
• she complained that “[e]ver since the Sheriff [Nienhuis] took over [January 1, 2011], there’s been nothing but problems there. I’ve noticed things in the office and they said, ‘Oh, you’re imagining it’ until I got them on DVD. They denied it.” (page 5);
• she also complained that since “Major Page came into the jail, I believe it was August 27th as, like the acting warden. And we’ve had problems ever since Major Page basically took over.” (page 6);
• after she sent her resignation to Col. Mike Mauer on May 19, 2011 at 2:36 a.m., he allegedly refused to accept it and opened an internal affairs investigation;
• a video tape shows Detention Deputy Angela Kaylor, a Sergeant from the Detention Staff named Pabbon and Traffic Deputy Brad Collito going through Ms. Greifenberger’s office. Those individuals are not authorized to conduct breath testing or even be around the instrument.

From the perspective of a criminal defense attorney, these problems should result in the suppression of ANY and EVERY breath tests taken during this period. Furthermore, during any time period in which the Hernando County Sheriff’s Office did not have a valid procedure for taking a breath test, any alleged “refusal” should also be suppressed. The issue in a refusal case is whether the subject refused to submit a sample on an “approved instrument.” If the instrument was not approved, then the law enforcement officer had no business asking the person to submit and was essentially be untruthful about the availability of an “approved instrument.”

Under Rule 11D-8.008(1), FAC, an applicant for a breath test operator permit must meet the following  qualifications:

1. Eighteen (18) years of age or older;
2. High school diploma or its equivalent;
3. Present employment by an agency, or the Department;
4. Successfully complete the basic Breath Test Operator Course approved by the Criminal Justice Standards and Training Commission;
5. Submit to the Department a complete written application and proof of course completion, no later than ninety days after completion.

In accordance with Rule 11D-8.008(2), FAC, an applicant for an agency inspector permit must meet the following qualifications:

1. Has been issued a breath test operator permit by the Department valid at the time that the application is submitted;
2. Successfully complete the basic Agency Inspector Course approved by the Criminal Justice Standards and Training Commission;
3. Submit to the Department a complete written application and proof of course completion no later than ninety days after completion;
4. Present employment by an agency or the Department.

Roger Skipper’s Memo to Laura Barfield on Unauthorized Breath Test Instrument Access at the Hernando County Jail – Read the memo date June 21, 2011, from FDLE Departmental Inspector, Roger Skipper, to the FDLE Manager of the Alcohol Testing Program, Laura Barfield. In the memo, Roger Skipper confirms that non-permitted persons gained access to the breath test instruments at the Hernando County Jail. Not surprisingly, this FDLE inspector also reported finding no proof of misuse or damage during his brief investigation.

“Present employment” by the Hernando County Sheriff’s Office should not include an independent contract paid $50 to perform each test. The problems that occurred in Hernando County show why strict compliance with the rules is important. We created this blog article to make sure that other criminal defense attorneys and the public know what happened with the Hernando County Sheriff’s Office breath testing procedures during this time period. This problem has been largely ignored by the media. We also invite others to share additional information with us on this topic.

Leslie Sammis is a criminal defense and DUI attorney with the Sammis Law Firm who represents individuals charged with DUI throughout the Tampa Bay area including DUI cases in Hernando County, FL.

These problems with the slowness of the system are compounded by the lack of precision in the optical filter bandwidth. In order to compensate, the Intoxilyzer 8000 must average the readings. Many of the continuing events in the analysis are never integrated into the final readings of the instrument. The manufacturer was able to save money when it built the machines, but these cost-saving measures sacrificed accuracy and reliability.

The pulsed source, because of its’ relatively slow operation results in a weaker and slower signal level from the detector. The pulsed source of the Intoxilyzer 8000 is 2 Hz at 6 to 10 mv. Other systems operate much faster. For instance, the Intoxilyzer 5000 operated at 120 Hz at 30 mv. The DataMaster operates at 500 Hz at 40 mv. The Intoxilyzer 8000 partially compensates for the slowness of the pulsed source by opening up the bandwidth of the optical filters to allow more energy to get to the detector.

Assumptions and Calculations Made by the Intoxilyzer 8000

The Intoxilyzer 8000 attempts to overcome these characteristics by taking an average the pulses over time. However, these averages then make it difficult to get a “real time” analysis since the computer generated reading always lags behind the events in the sample chamber. Consider these systemic problems that are unique to the Intoxilyzer 8000 which are covered up by certain known and unknown assumptions contained in the software:

• The Intoxilyzer 8000 has a lack of precision at lower levels cause by the weak signal level (6 to 10 Mv) at the detector. In fact, in the Intoxilyzer 8000 the software blanks everything below a .006.

• Often the slope detection is so ineffective that many breath samples containing known mouth alcohol conditions are missed by the slowness of the system which operates at 2 Hz per second. This fact is clearly in the Staubus Report.

• Lack of consistent agreement between first and second samples which is demonstrated by the two test routine used in Florida. The Staubus Report shows the lack of .02 agreeement on multiple tests that can result in a charge of refusal as the officers often interpret this as a sign of a non cooperative subject.

• A poor performance in detecting hydro carbons other than ethanol when present in the ethanol sample. Staubus did some work several years ago that compared the 8000 to other instruments. That work showed that the Intoxilyzer 8000 was inferior in its’ ability to detect many interferents that can be present during a breath test. In chemistry, the term interferent is defined as any substances that interferes with the analytical procedure and generates incorrect results.

• The pressure transducer that is used in the 8000 has some serious issues in precision and accuracy that can result in an inaccurate calculation of the volume of air being blown into the instrument. This can affect sample acceptance minimums and result in a charge of refusal as the officers often interpret this as a sign of a non cooperative subject. This problem is also demonstrated in the Staubus Report.

Infrared Absorption in the Intoxilyzer 8000

The most common technology used for the evidential testing of human breath for ethanol concentration involves infrared absorption. The instrument selected for use in Florida in 2002, the Intoxilyzer 8000, uses infrared absorption technology. A number of different compounds, specifically hydrocarbons, absorb infrared energy at known wavelengths. Each of the compounds will produce a unique pattern sometimes referred to as a “fingerprint”.

For alcohol breath testing, the wavelengths used for this analysis are between 3 and 10 microns. The most important part of the analysis involves determining with certainty that ethanol and not some other compound such as acetone is causing the absorption. Determining this specificity is done in several ways. In the Intoxilyzer 8000, credible defenses can be raised to challenge the ability of the machine to determine whether the reading produced resulted from the presence of ethanol as opposed to certain other compounds often called intererents.

Components of Infrared Absorption

The Intoxilyzer 8000 uses four critical components for infrared absorption:

1. the device often called a “lamp” that actually produces the infrared energy;
2. the “optical filters: which prevent the passage of any frequencies of infrared energy except for those which are designated;
3. the “detector” which responds in proportion to the amount of infrared energy that is present; and
4. the sample chamber.

The Infrared Source Lamp Used in the Intoxilyzer 8000

The infrared source lamp emits infrared energy within the frequency range that the filters and detector need to operate. The infrared source lamp also emits infrared energy at a level that is sufficient to cause a response from the detector. The Intoxilyzer 5000 uses high intensity photo projector lamps. These lamps less desirable because they are not particularly stable or efficient.

The output from these high intensity photo projector lamps is continuous. Because it is continuous, it needs to be chopped (or modulated) to function. The term “chopping” or “modulation” refers to the process of passing a physical element between the source and the detector so that the energy striking the detector is broken up into regularly alternating periods of light and dark producing a corresponding pattern of an alternating current output signal from the detector.

Problems with the Pulsed Source on the Intoxilyzer 8000

The Intoxilyzer 8000 uses a “pulsed source.” The pulsed source is composed of a material that can be heated but will also cool very quickly. This process of rapid heating and subsequent cooling produces a modulated stream of energy at the detector at a frequency of usually 2 to 4 times per second. One undesirable characteristic inherent in this “pulsed source” system is a profound limit of the operating speed of such a device. The main reason a breath test manufacturer would use such a system seems to center on the fact that such as system is much less expensive than other alternatives. For the Intoxilyzer 8000, the chopping is done by pulsing the power to the lamp rather than by physically blocking the energy.

The most expensive alternative is called the ”grey body” sources. “Grey body” sources are highly stabilized and produce a continuous stream of steady infrared energy. This technology uses a coiled tungsten metal operating on very low regulated voltages which is focused into the sample chamber for greater efficiency. These “gray body” sources operate continuously at close to 1000 degrees C on as little as 2 or 3 volts DC. Although the “grey body” lamp are much more expensive, they usually last for the life of the breath test machine. The “grey body” lamp also require far less chopping and operated at much greater speed thereby producing a more accurate breath test reading.

The complexity of these issues and the fact that the manufacturer of the Intoxilyzer 8000 keeps this information out of the reach of criminal defense attorneys explains why the courts throughout the State of Florida have failed to adequately address these issues. Viewing the remaining portions of the Intoxilyzer 8000 source code (those preserved in CMI’s “remaining documents”) are critical in understanding how these problems impact a particular breath test reading.

Leslie Sammis is a criminal defense and DUI attorney in Tampa, FL. Visit her main website to find out more about fighting drunk driving cases involving a high blow on the Intoxilyzer 8000 in Tampa, Hillsborough County, FL.