Broward County Criminal Lawyer Blog

A Naples judge recently ruled that the state's DUI law is constitutional, despite a challenge from defendants over the use of faulty breathalyzer tests.

As our Broward County Criminal Lawyer Blog has highlighted before, the issue of faulty breathalyzers in Florida has heated up in recent months.

Being charged with DUI in Fort Pierce or elsewhere is a major event in a person's life. It can lead to custody in jail or prison, fines and fees, possible probation time, completion of DUI school, and possibly having to install an ignition interlock device. The consequences are serious.

And because of that, defendants should have their rights upheld 100 percent of the time. In many cases our Broward DUI defense lawyers have seen defendants' rights trampled because of poorly manufactured or unmaintained breathalyzers.

Breath testing is a major component of DUI investigations. If a driver consents to taking a breath test, the number that registers can go a long way toward determining if he or she is found guilty or not guilty of the charge.

But what jurors often aren't told is that the machine may be faulty or may be registering incorrect readings. And that's where the argument came in about the law being possibly unconstitutional.

A defendant has the right to access all evidence that is going to be used against them before trial. That means they can examine physical evidence, read reports generated by police or witnesses, interview these people, look at ballistics or DNA reports in violence crime cases and so on.

But while a defendant can see those reports, in a DUI case they can't see what makes the breathalyzer work or figure out if it was working properly on the date it was used against them. As we previously reported on this issue, prosecutors in Sarasota have recently dropped cases after breathalyzers were shown to be faulty.

Tests run on the devices used by law enforcement there showed that drivers were blowing into machines more air than their lungs could possibly produce at one time. When further examination was done, the breath test evidence was thrown out and many defendants had their charges dropped. These are the same machines used by police statewide because it is the only one authorized.

As this issue has progressed, judges have begun issuing court orders allowing defendants to see how the machines work. But the Kentucky manufacturer has been reluctant to give out information about how the product works for fear that competitors could steal their ideas.

That's what happened recently in Naples. While a judge rebuffed the argument that the potentially faulty devices make the law unconstitutional, he told the lawyer making the argument that he would order the manufacturer to turn over information about the device only to him. He is ordered not to share the information with other lawyers.

While the judge's ruling is understandable, it is just going to take more time for this issue to be resolved. Before long, every DUI defense lawyer in the state will be filing a similar motion and every attorney will eventually have access to the technology.

Let's hope that this pursuit continues so that drivers accused of DUI in North Miami and elsewhere can get a fair trial. These devices shouldn't be used if they aren't working properly.