Attorney claims hundreds of DUI test unreliable - Fox29 WFLX TV, West Palm Beach, FL-news & weather

Attorney claims hundreds of DUI test unreliable

PALM BEACH COUNTY, FL (WFLX) - Several DUI cases, possibly hundreds of them, could soon be up for debate in Palm Beach County.

That's according to a South Florida defense attorney, who has filed several motions, claiming the DUI breath test used throughout the state is unreliable.

This isn't the first time attorney Brian Gabriel has gone after the accuracy of the breath tests, but this time, he says, a tiny hole is the source of an entirely new problem.

The majority of people charged with driving under the influence are taken to the county's Breath Alcohol Testing Center and blow into what's called the Intoxilyzer 8000.

The machine uses breath to gauge intoxication.

Gabriel said an adjustment made to the machine in 2006 was done without going through the proper channels, leaving its results, he says, useless in court. "The problem is the rules and the laws of this state. If the manufacturer makes a change, they have to notify the department and it has to go through an evaluation process," he said.

Gabriel showed photos of the tiny hole drilled into part of the machine to make it work properly.  He said it is then covered by a small plate. 

According to Gabriel, it was all done without the required approval. "A machine is not working properly, if you have to put a hole into it, and when they did put a hole in it, they did not follow the black letter law," he added.

The Florida Department of Law Enforcement calls the hole a check valve.

A spokesperson said the machine works exactly how it should but couldn't speak to the installation process. "The FDLE and the manufacturer made every step to keep this secret, never disclosed it, never put it in writing, they put a plate on top of the whole to cover it up," Gabriel said.

Alan Triggs, an attorney for CMI INC, the machine's manufacturer, said, "There is pending litigation in Southern Florida regarding this very issue. It is CMI's policy not to discuss issues that are currently being litigated."
Some counties in Florida don't allow the machine's results into court, but the Palm Beach County State Attorney's Office says the Intoxilyzer 8000 generates accurate results.

Gabriel hopes to hold a meeting with the judges that deal with these cases, explaining how he wants the machine's results thrown out or for the machine to be properly approved.

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