VENICE, Florida -- Thousands of people in Florida convicted of DUI may not have been drunk at all. They very well may have been under the allowable blood alcohol limit. The problem may have been law enforcement not calibrating the breathalyzer called the Intoxilyzer 8000.
Now, the 10 News Investigators have uncovered documents and emails that prove the state knew there were problems and didn't do anything to correct it for more than two and half years.
"I agree that drunk driving is wrong. We need to get drunk drivers off the road, but we should not be convicting people of drunk driving with evidence that we know is not reliable," says former prosecutor turned defense attorney Robert Harrison.
"As a prosecutor, your number one goal is justice and that does not mean convict an innocent person. You only want to use good evidence," says Harrison.
Bob Marois was arrested for DUI and willingly submitted to the breath test because he was sure he was under the legal limit. He was told the problem was he wasn't blowing a proper amount of air. "He said, 'You're not cooperating' and he said, 'You have to blow' and I said, 'I am blowing' and he said, 'You're not blowing.' I said, 'I'm blowing,'" says Marois, who ended up losing his license and a substaicial amount of money on appeals.
But the problem wasn't with Marois, it was the machine which wasn't recording proper breath levels. Eventually, that breathalyzer had to be pulled offline and sent out for repairs. "It's not right when the state knows it's not working properly and there's emails to that effect and they keep doing what they're doing. It's not right," says Marois.
The 10 News Investigators obtained letters where a Sarasota deputy noticed there was a problem recording breath samples and breath flow levels as far back as 2007. He wrote in his notes that he even alerted an inspector who agreed there was a problem.
Those notes prompted an email from the head of the breath testing program, Laura Barfield, telling inspectors not to write down flow sensor problems in their field notes.
Mike Deeson: Florida Department of Law Enforcement knew there was a problem and their inspectors were documenting the problem and the head of the department then said?
Stephen Daniels DUI Expert: Don't document it anymore and keep a separate spreadsheet that somebody might not know existed. Nobody knew it existed.
Mike Deeson: What do you call that?
Stephen Daniels: A cover-up.
Robert Harrison discovered that the Intoxilyzer 8000 in Venice had a part replaced in 2008 and wasn't calibrated and was giving police breath tests that were off the charts.
"They were reporting breath levels that were not humanly possible. The net result is the state has acknowledged that for two and half years this breath machine was giving unreliable breath tests," says Harrison.
But it wasn't just in Sarasota where it appeared the fox was guarding the henhouse. Harrison started going through the records of the intoxilyzer and he was shocked to find the lack of candor by the state, which was aware there was a problem with the machine, for almost three years.
"As we found, almost half of every Intoxilyzer 8000 used in the state of Florida is not properly calibrated. There are enormous implications. I would tell anybody convicted of DUI using the breath test over the past few years they may want to talk to their lawyer because this information the state wouldn't tell anybody about," says Harrison.
While several people, including Bob Marois, who were arrested for DUI using faulty machines have had their convictions thrown out, they ended up losing their licenses for up to a year, having their mug shot forever online, and spending thousands defending themselves.
"Certainly you're not advocating for drunk drivers to be on the road, not at all. You shouldn't be drinking and driving, but if they are going to convict you, they ought to do it fairly," says Marois.
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