CMI’s Arguments on Subpoena Duces Tecum for Intoxilyzer 8000 Source Code in Hillsborough County, FL
The Criminal Defense Attorneys at the Sammis Law Firm are engaged in a fight to obtain the source code of the Intoxilyzer 8000 in order to understand numerous glitches that resulted in at least one employee with the Hillsborough County Sheriff’s Office to unplug or otherwise falsify evidence that the instruments could not pass routine monthly inspections. The evidence is actually documented on dozens of videos taken in the central breath testing facility at Tampa’s Falkenburg Road Jail before officials removed the camera in November of 2009.
Pull Plugs, Lies and Videotape
Removing the cameras was not enough because in April of 2010, the Hillsborough County Sheriff’s Office (HCSO) then started a secret new procedure of destroying more than four years worth of old videos (many for pending cases) which eliminated any evidence of the falsification of monthly inspections of the Intoxilyzer 8000. In a recent status conference, a prosecutor with the State Attorney’s Office in Tampa claimed that HCSO destroyed the videos to avoid the inconvenience of responding to public record requests.
Apparently, the video of the “pull plugs” and other falsifications of monthly inspections must have been popular with criminal defense attorneys throughout the state.
Subpoenas to CMI for the Intoxilyzer 8000 Source Code
Many DUI Attorneys throughout Florida have served CMI’s registered agent in Florida with a subpoena duces tecum which seeks to compel CMI to produce certain documents including a request for the software version 8100.27 developed specifically for Florida’s Intoxilyzer 8000 instruments. Our version of the subpoena duces tecum asks for other documents as well, including software versions never fielded in Florida, manuals, COBRA data and other data fields, and software offered in other states.
We are trilled that CMI, Inc., has responded. Even if it is only to raise every possible objection.
We have previously discussed the importance of viewing the “source code” to see whether the Intoxilyzer 8000 actually works as advertised. New evidence has come to light that CMI allows each state to select the COBRA data that will be reported. These customized options allow some states, including Florida, to hide important information such as the number of “sample attempts” in a given sample and the sample duration. Data from other states including Oregon and Ohio shows that one test result can be made up of numerous “sample attempts” with no ability to determine which sample attempt was analyzed to determine the Breath Alcohol Concentration.
CMI Enters the Debate – The Stonewall Continues
In many of these cases (including our DUI cases), CMI is now filing a Notice of Limited Appearance to Challenge the Validity of a Subpoena Duces Tecum served on CMI, Inc., registered agent in Florida. The notice of limited appearance is being filed along with “CMI, Inc.’s Motion to Quash on Grounds of Materiality or, in the Alternative, for Protective Order.” CMI is objecting on the following grounds:
- There is no indication that the defendants sought leave of Court to serve this subpoena or otherwise obtain a determination from the Court that all subpoenaed materials were “material” to the defendants’ cases. CMI complains that CMI was not a participant in these proceedings at any time this Court may have initially made a determination that the subpoenaed materials were “material” and authorized the issuance of the subpoena.
- CMI goes to great length to discuss the Fifth District Court of Appeal’s very recent decision in Dept. of Highway Safety and Motor Vehicles v. Berne, ___ So. 3d ___, 2010 WL 3927242 (Fla. 5th DCA Oct. 8, 2010), which found that the source code and other technical aspects of the Intoxilyzer 8000 cannot be “material” to defendant’s case since the “approved” status of the instrument is purely and exclusively a question of compliance with administrative procedures.
- CMI claims that several months before the Berne decision issued, CMI began a concerted effort to try to reach an agreement with defense counsel around the state to arrange for a forensic examination of the Source Code to the Intoxilyzer 8000. To that end, CMI asserts it represented to the trial courts in Seminole, Sarasota, Manatee, Hillsborough, Escambia, Monroe, and Duval Counties that it was willing to negotiate such an examination to arrive at a comprehensive model that could be used throughout the state. CMI claims that several of the courts specifically allowed CMI and defense counsel time to engage in such negotiations, based on representations by defense counsel that they would engage in good faith negotiations. (Apparently, CMI made no such representations that it would engage in good faith negotiations).
- In late August 2010, CMI and its engineers conferred with Orange County DUI Attorney, Stuart Hyman, and defense experts, Dr. Harley Myler and Stephen Daniels with DUI undo Consultants, to understand the needs of the experts and defense counsel. Shortly after that conference, CMI prepared and provided to defense counsel around the state a proposed comprehensive protective order that it claimed afforded extensive access to the Source Code in its native electronic format. The proposed access and accompanying technical support far exceeded the scope of materials originally sought in Source Code subpoenas served on CMI.
- CMI claims the model used for the protective order requested by CMI was specifically endorsed by the U.S. District Court in Minnesota as a reasonable balance between affording the defense bar access to the Source Code and protecting CMI’s proprietary interests and state security concerns regarding the breath alcohol testing program. CMI added:
In fact, a comprehensive examination of the source code for the Intoxilyzer 5000 instrument was recently completed by defense experts using precisely this model…. Not surprisingly, after weeks of examination, the defense experts concluded the Intoxilyzer 5000 was functioning reliably.
Regardless of the spin, CMI didn’t mention that the State of Minnesota recently announced that it will soon replace every Intoxilyzer 5000 with the “Datamaster” breathalyzer manufactured by the National Patent Analytical Systems.
National Patent Analytical Systems actually makes it a part of their business practice to work with criminal defense attorneys. In fact, upon request, a criminal defense attorney can obtain the source code to the “Datamater” on a disk by mail for about $250.00.
The fact that Minnesota decided to sign a + $1.5 million dollar contract with CMI’s biggest competitor is hardly a surprise given CMI’s drastic and expensive fight against transparency. Perhaps Minnesota no longer wanted its entire alcohol testing program to be at the mercy of CMI’s stubborn stonewalling attempts to thwart any effort to understand how the instrument actually works. It is certainly good news for the taxpayers in Minnesota that they will not have to fight anymore over the source code. It is also good news for criminal defense attorneys in Minnesota who can at least deal with an instrument that can be understood.
Read Part II – The Rest of CMI’s Objections (it gets even better)…
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