Watch Out for Falling Surge Protectors – More Problems with the Intoxilyzer 8000
When Florida purchased the Intoxilyzer 8000 it needed an easy way to show a jury that the machine worked. To do this, officials with the State of Florida worked with the manufacturer of the machine to designed a series of monthly tests.
The monthly test is called the “Agency Inspection.” At trial the prosecutor admits into evidence the breath test affidavit showing the Breath Alcohol Concentration estimated by the machine and a copy of the last agency inspection.
What Happens When the Intoxilyzer 8000 Can’t Pass the Agency Inspection?
The problem is that the Agency Inspectors have a very difficult time getting the machines to pass the monthly inspections. The machines have been in service since 2006. It is similar to your vehicle. After the first few years the machine starts to break down more frequently and the repairs become more expensive. In order to avoid expensive repairs to the machine, agency inspectors go to great lengths to make it look like the machines are working properly even when they are not.
If the instruments can not even pass the monthly inspections then it makes it more difficult for the prosecutors to convince the jury that the machine was working properly during the subject’s breath test.
Pulling the Plug on the Intoxilyzer 8000 to Dump Data of a Failed Inspection
A failed monthly inspection is a problem. The machine has a neat little trick to avoid this problem. If you unplug it during the inspection (or otherwise cause the machine to lose power) then any evidence that the inspection failed is lost forever. In fact, any evidence that you even attempted an inspection is lost.
In fact, you could have nine (9) inspections in a row that fail and if you unplug the instrument each time all of that data would be completely destroyed. If the machine passed the tenth (1oth) inspection, then you print out the report and say it is in compliance. For anyone looking at the records, it would look like only one inspection had been conducted and that instrument passed that inspection. The instrument was designed to permit this little trick.
Getting Caught Pulling the Plug
Over the years, agency inspectors and departmental inspectors have gotten caught red handed using these little tricks. In fact, in 2009, FDLE fired a department inspector named Sandra Veiga who was caught showing agency inspectors how to pull the plug to dump data of a failed inspection so that no one would know it had occurred.
The Unexplained Login Record
The only problem with the little trick is that after the machine is unplugged to dump the data, the inspector has to log back in. The login creates a record that is harder to destroy. Those unexplained logins show up in a report that can be accessed. Inspectors often testify that they do not remember why there are so many unexplained logins. So criminal defense attorneys, prosecutors and judges just have to trust that the inspector is telling the truth about whether an inspector failed or not.
Having this little trick really defeats the purpose of the monthly inspection. For some reason, it seems that Hillsborough County has more than its fair share of problems keeping the power running to the Intoxilyzer 8000 during these monthly inspections.
Watch Out for Falling Surge Protectors
In an inter-office memorandum dated May 6, 2013, the current Agency Inspector for the Hillsborough County Sheriff’s Office explains how a freak accidental power loss occurred during a monthly inspection. The memo reads: “The agency inspection for instrument serial number 80-001731 had to be repeated due to the following issue:
While unplugging a simulator from the multi outlet surge protector behind this instrument, the surge protector became disconnected from the wall and fell to the counter top. The power switch was flipped from the impact, thus turning off this instrument and it’s printer. The instrument inspection sequence was between the 0.08 g/210L DGS test and the final diagnostic. All tests were in compliance up to this point. The inspection was restated and the instrument complied with Chapter 11D-8, FAC. Mr. Philip Suber, Department Inspector for FDLE Alcohol Testing Program, was notified. Assistant AI Kathy Williams, was present and observed the event.”
The memo is signed as acknowledged by Sgt. Timothy R. Bell with the Hillsborough County Sheriff’s Office on May 10, 2013. Although a second inspection was conducted on May 6, 2013, there is no mention of the first failed inspection on the Form 40. Except for the inter-office memorandum, no one would know that the Intoxilyzer 8000 with serial number 80-001731 was not in compliance for the first inspection. When the machine loses power during the inspection all data is lost. In fact, the only data that remains is a log in record from the first log in, and the second log in that is required to complete the second inspection.
In an e-mail dated May 6, 2013, at 8:50 p.m., the Agency Inspector for the Hillsborough County Sheriff’s Office referenced a different instrument with Serial Number 80-000830 and said the “power strip fell off it’s mount and turned off… the instrument and printer.” It turned out that he meant to say 80-001721 not 80-000830. Apparently the surge protector and the power strip are the same thing.
When I asked if I could go into central breath testing at the Orient Road Jail to take a look at the surge protector, I was told by Sgt. Bell says that “changes have been made” to the location where the Intoxilyzer 8000 machines are plugged in during the inspections to “avoid accidental power loss during future inspections.” Nevertheless, my request for a tour of CBT is being currently being reviewed by CBTU Major Mike Perotti.
So somehow the surge protector fell out of the wall. Not only did it fall out of the wall but it just happened to hit the power switch turning off the Intoxilyzer 8000. And all that just happened to occur during the monthly inspection? No one can show us the offending surge protector because “changes have been made.” Really?
What Happened to the Form 40?
For some reason all of the interesting stuff that happens at HCSO’s Central Breath Testing ends up in an inter-office memorandum instead of the Form 40 that is required under the rules. Unless you know to request the inter-office memorandum when you see the unexplained logins you might never know about the falling surge protectors and other freak accidents. By putting the information in an inter-office memorandum the officials with the Hillsborough County Sheriff’s Office make it a lot less likely that anyone would ever know about it.
And since nothing in the rules requires anyone to put anything in an interoffice memorandum you should really consider yourself lucky to find out about it at all.
The rules in Form 39 require that “[i]f a test must be repeated, the REASON must be entered when prompted and recorded in the Remarks section of FDLE/ATP Form 40 Agency Inspection Report – Intoxilyzer 8000.”
The rules in Form 39 also require that: “The results of the Agency Inspection must be recorded on FDLE/ATP Form 40 Agency Inspection Report – Intoxilyzer 8000.” If power to the machine is lost during the inspection no Form 40 is automatically generated, although the agency inspector could go the FDLE website and print out a blank Form 40 and fill it out.
Or after the test is repeated, on the Form 40 that is generated with that second test the agency inspector could type in a comment. For instance, the comment could explain that the first inspection of the day “failed due to a failing surge protector.” But that didn’t occur in this case either. For criminal defense attorneys defending DUI cases in Tampa, don’t hold your breath for the prosecutor to send you a Brady Notice about this freak accident. Maybe the State Attorney’s Office doesn’t get a copy of the inter-office memorandum either.
You can click here to read about the falling surge protector:
Leslie Sammis is a criminal defense attorney fighting DUI breath test cases in Tampa, Hillsborough County, FL. In her spare time she enjoys hunting down inter-office memorandums from Central Breath Testing and looking for unexplained login records. She also uses an uninterrupted power source for her important electrical equipment.
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