Tests don't end Intoxilyzer debate

MELBOURNE - A long-awaited torture test of the machine used by police to gather evidence in drunken-driving cases brought no end to the debate that inspired the experiment in the first place.

The ultimate impact of these tests, peformed last month in a Brevard lab, remains to be argued case by case in court during DUI trials, where juries can decide what they believe about the reliability of the Intoxilyzer 8000.

The tests represent the climax of four years of quibbling between prosecutors and the legal firm of Eisenmenger, Berry and Peters - the same group that claims a Stand Your Ground defense on behalf of a Titusville man who shot three of his neighbors at the peak of a feud.

Years ago, the lawyers filed a motion on behalf of several DUI clients to have the Intoxilyzer 8000 breath-testing machine checked for accuracy. The machine is approved by the National Highway Traffic Safety Administration and the Florida Department of Law Enforcement.

Prosecutors argue there was no evidence that the machine had problems in the cases in question and no reason to doubt its reliability.

The defense lawyers say the entire legal process relies on the state's trust in the breath machines.

"Nobody gets to touch these machines other than Florida Department of Law Enforcement and local police agencies," law partner Robert Berry said. "If they pass all these tests, when they're being looked at critically, then good for them."

Judges ordered a few tests of the machine that were carried out in late September: heat it up, cool it down, shake it around and see if it works. Comparisons between blood-alcohol tests and the machine's breath-test results are scheduled for later this month.

The atmosphere in the lab was tense: on one side, defense attorneys and their consultant prepared to carry out court-ordered tests on the machine. On the other: prosecutors and police experts chatted among themselves, skeptical of the proceedings.

The machine was supplied by Brevard County Sheriff's Office and was put through prescribed abuse at a lab off Wickham Road.

It's a pedestrian-looking device, built of gray plastic, about the size of a beach cooler, with a breath-tube and a keyboard - there's a blue LED screen on the top left side and a small printer on the right.

It measures blood-alcohol content with infrared light, which is absorbed by alcohol molecules, according to FDLE's Intoxilyzer expert, Patrick Murphy. When someone blows into the machine, infrared light shines through the gas. The machine measures how much light makes it through to the other side, and the difference determines the alcohol level.

It took about three days to finish the three tests. The debate rages on: one side says it met expectations, the other says not so fast.

"There was a malfunction with the printer that I think everybody thinks is in the Intoxilyzer end of it as opposed to the printer end of it," Berry said.

"Passed with flying colors," Murphy said.

One of the key points of contention: a small tank of nitrogen and alcohol that creates a vapor of .08 percent, identical to a legally intoxicated person. It's integral to the function of the machine, which is programmed to test its own accuracy with the dry gas before and after anybody blows in it as a means of calibrating itself.

"The shaking of the dry gas actually cracked a tiny faceplate in the dry gas regulator which caused the gas to leak out of the tank," Murphy said.

The dry gas canister was not attached to the machine during the two temperature tests, when it was chilled to negative-13 degrees Fahrenheit for two hours and baked at 150 degrees for six hours.

"Nobody in their right mind would take a canister of gas under pressure and heat it up," Murphy said.

Berry agreed but suggested that the canister is part of the machine and should live up to the same durability standards. Assistant State Attorney Michelle Perlman says that the canister - and the printer - are external devices, and the internal alcohol-measuring electronics performed correctly during the tests.

"They shook the heck out of it, they baked it, they froze it," Murphy said. "Every measurement of alcohol was still right on. It was kind of neat to see."

The ultimate impact of these tests remains to be argued in court during DUI trials.

"How you view what happened ... is sort of like a Rorschach test," Berry said. "Ultimately though, the people that will determine whose interpretation of that Rorschach test is correct will be jurors."

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