Intoxilyzer 8000 “Source Code” Litigation in Tampa, Hillsborough County, FL
The Tampa DUI Attorneys at the Sammis Law Firm have filed numerous motions to obtain the “source code” of the Intoxilyzer 8000 which includes the “Florida specific software” that runs the breath test machines throughout the State of Florida.
After seeing the progress made by DUI attorneys in other jurisdictions, most notably, Stuart I. Hyman in Orlando, we decided to file similar motions here in Hillsborough County, FL. In many ways, Hillsborough County is the perfect location for this litigation because we are the only jurisdiction with videotape evidence that shows all of the monthly agency inspections and many of the departmental inspections on the machines up until the video camera were removed in November of 2009.
This litigation includes the following issues:
- motions to obtain the source code,
- asking results to be excluded because the machines are not “approved;” and
- request to inspect and photograph the hardware in each of the intoxilyzer machines used in Hillsborough County, FL.
What we learned prior to the hearing:
1. Although the Hillsborough County Sheriff’s Office didn’t have all the repair records for the various machines used, we were able to obtain the repair records from the only company the State of Florida uses to repair all of Florida’s Intoxilyzer 8000 machines – Enforcement Electronics Services, Inc., in Lakeland which is owned by Jay Logue.
2. The videotape evidence that suggests that HCSO agency inspector Beverly Gray “pulled the plug” or otherwise caused a power outage that effectively dumped data is much greater than we first realized. We were lucky enough to find Stephen Daniels with DUI undo Consultants, LLC, who had an extensive collections of videotape evidence for many of the monthly inspections which he had obtained through public records requests. Stephen Daniels was able to provide us with example after example which shows evidence of the failure of the Hillsborough County Sheriff’s Office to follow many of the rules. We immediately hired him as an expert witness and DUI consultant. He has done a great job of helping us prepare for the hearing.
3. Although many criminal defense attorneys throughout Hillsborough County have reported finding individual instances of questionable conduct on those videotapes as it related to individual cases, it took a non-lawyer to see the big picture. Stephen Daniels deserves much of the credit for painstakingly watching hundreds of hours of videotape, comparing the videotapes to the log in records, monthly agency inspections, and FDLE departmental inspections to uncover the truth.
4. Stephen Daniels with DUI undo Consultants has actually watched several of these videos with Laura Barfield, head of the FDLE Alcohol Testing Program. The day before the hearing, Stephen Daniels also sat down in our office with the prosecutor to watch many of the videotapes that we intended to show at the hearing.
5. Amazingly, the “pulling the plug” or other unexplained “power outages” go back to at least until early 2007 and can be shown up until the point the new agency inspector took over in January of 2010. We even have evidence of an incident in which it appears that she might have tried to “dump data” of a failed monthly inspection, but the data was actually preserved. The fact it was accidentally preserved may have been a big problem for the FDLE Breath Testing Inspector Don Suereth, who sent Beverly Gray correspondence asking her to document the excuse that “the instrument inspection did not comply due to the fact that a sample was not provided during the allotted time necessary for this test to take place.” Apparently, she didn’t understand his pretty explicit instructions and instead wrote “inspection on this instrument was not completed due to power failure.” This atypical example is the only time we have seen the failed inspection data preserved. Normally the power outage (i.e. plug pull) leaves no public record. Without the video tape evidence no one would ever know that the machine failed for many of these monthly inspections.
6. Not only does it appear that the agency inspector may have “pulled the plug” but it also appears from the video tape evidence that she may have documented false excuses to explain why the machine was still in compliance after a failed reading was reported. Those false excuses included “changing an o-ring” and “loose connection” when the video tape evidence clearly shows that Beverly Gray didn’t change any o-ring or locate any leak. One could argue that she had no idea what caused the failure and just made up an excuse so that the machine would not have to be send off for repairs.
7. Allegations of Lazy Lies. Beverly Gray used the “o-ring” excuse on June 18th, 2008. She may have liked that excuse so much that she used it again the next day when testing a different machine. One would expect a problem with the o-ring to be relatively rare. The odds of it happened on two different machines within a two day period is astronomically high. Of course, there is also the fact that the video doesn’t show that she changed an o-ring on either July 18th or July 19th.
Things we believe need to be established at the “source code” hearing:
We have hired Dr. Harley R. Myler, Ph.D., P.E., who is an expert in the field of electronic and computer engineering particularly as it relates to embedded systems. He have previously given testimony concerning the following topics throughout the State of Florida:
- explaining the “source code” for the Intoxilyzer 8000 in general, and the “Florida Specific” software used on machines in this state;
- numerous glitches that occur including the machine providing a breath test reading over the legal limit when the machine also indicates that no breath was actually detected by the machine (which should be impossible);
- the importance of allowing an expert to actually view the inside of the Intoxilyzer 8000 machines used in Hillsborough County, FL, and to inspect the actual hardware which may vary from machine to machine depending on what repairs or modification have been made to each machine;
- the importance of inspecting the “source code” so that a computer or software engineer could learn more about how the machine was designed to perform after a “power outage” occurs during a monthly agency inspection.
- More importantly, by viewing the source code, an expert can learn more about why certain data is lost after a plug pull and whether their is anyway to retrieve that evidence.
Dr. Myler has also provided his opinion about his requirements for performing an appropriate analysis of the Intoxilyzer 8000 source code in support of defendants in the State of Florida who have been subjected to evidence produced by these machines, including the following:
1. The source code versions for all software that has run in Florida Intoxilyzers to date to include unapproved versions that were used in Florida during pre-approval stages.
2. Source code compilation documentation as well as any data files required to produced compiled applications for the Intoxilyzer 8000 as it is used in Florida. This being the requisite compilation data to produce the files contained on distribution CD’s as well as executable application files as intended to be downloaded for use in Florida Intoxilyzers.
3. Revision histories detailing changes made to the software for documentation and source code control purposes. Additionally, any source code control data files.
4. Any specialized applications developed for use with the compilation, distribution and evaluation, to include simulators, of the Florida Intoxilyzer programs. If these applications were produced in-house and have bearing on the analytical or reporting aspects of the machine, then the source code used to produce them will be required as well.
5. Software design documentation and change orders specific to Florida Intoxilyzer software.
6. Specifications for source code development software to include any IDE’s, compilers, assemblers or other commercial software utilized to process the Florida Intoxilyzer source code. If any tools are no longer available then these must be supplied, along with any requisite installation packages, with the source code.
Dr. Myler has also offered his opinion that this list may need to be supplemented or modified if he receives additional information CMI (who manufactured the Intoxilyer 8000), the State of Florida, the defendant’s counsel or the court.
In this article, I will try and provide an easy to understand summary of what the evidence in Hillsborough County might suggest:
Beverly Gray was the former Agency Inspector with the Hillsborough County Sheriff’s Office. It was her job to complete monthly agency inspections on the machines to make sure they working properly. Out of all the counties in the State, it appears that only Hillsborough County actually had video cameras that taped the monthly inspections.
That additional piece of evidence really makes the source code litigation unique in Hillsborough County, because we have so much more evidence available. Attorneys in other jurisdictions were often left with trying to “prove a negative.” Even without video evidence, many of those top DUI attorneys throughout the State of Florida have been successful in obtaining favorable rulings. But in Hillsborough County, we have hundreds of hours of video tape that show problems with the annual and monthly inspections that took place over the last several years.
We have watched more than 10 tapes now and it does appear that Beverly Gray unplugged the machine (or otherwise suffered from an unexplained power outage). One could argue that the mysterious power outage occurred in order to erase any evidence that the Intoxilyzer 8000 failed a monthly inspection. I draw this conclusion after looking at the data on the FDLE website which shows that she logged in at a certain time onto the Intoxilyzer (on the video tape you also can see her log on at the same time). Then you can see on the video tape that she begins a monthly inspection by blowing into the machine for the alcohol free test and the mouth alcohol test. It appears that when something goes wrong with the test (such as the machine detects mouth alcohol) she just unplugs the machine.
Unplugging the machine is a big problem even if evidence of a failed inspection is lost on the intoxilyzer because the agency inspector is suppose to document the failure on a Form 40. FAC-11D clearly states that if an inspection fails for any reason it must be documented. A second inspection can be run, however, that inspection must be properly documented on a Form 40 (Agency Inspection Report).
Why were these “failed” monthly inspections were not properly documented according to the rules? If the rules were not followed, criminal defense attorneys in Tampa can argue that the machines were not “approved.” Should breath tests in Hillsborough County be excluded if the machines were not in substantial compliance with the rules? We certainly intend to make that argument.
Of course, we are not the only ones to draw this conclusion that the plug was pulled. The Honorable Peary S. Fowler, County Court Judge for the Sixth Judicial Circuit in and for Monroe County, FL, granted a motion to exclude the breath test during a hearing involving criminal defense attorney Richard Hersch, one of the first attorneys to take advantage of this videotape evidence to show Beverly Gray “pulling the plug” as evidence of a statewide problem. Judge Fowler found:
Defense presented as evidence of a systemic use of Viega’s improper plug-pull shortcut to circumvent failed inspections by producing a video tape of the booking room at the Hillsborough County Jail…the video shows an inspector conducting an inspection on one of the Intoxilyzers in an open alcove next to the booking area. Clearly visible on the tape is the inspector, whose back is to the camera, reaching down and unplugging the instrument on at least three occasions. A check of the logs for that instrument shows plug-pulls that coincide with the video. The logs verified that the plug pulls apparent on the video occurred during the inspection phase of the I8000 and were uncannily similar to the plug pulls in Ms. Viaga’s case that led to her being fired. They were also uncannily similar to the plug pulls in Ms. Viaga’s case that lead to her being fired…. The question that looms at this point is how systemic is this falsification of reports? Are the inspectors from both FDLE and local law enforcement agencies using the knowledge that in the case of a failure, the machine could be “rebooted” by a plug pull and the imminent failure information would never go to Tallahassee. This is the “no one will ever know” theory. This method of rebooting the instrument is in direct contravention of the Florida Administrative Rules regulating the proper monthly and annual inspections.
We predict that those HCSO videotapes will be the downfall of the Intoxilyzer 8000 in Florida. If the department and agency inspectors have been dumping evidence of failed inspections, then they are tampering with evidence and should be prosecuted accordingly. Perhaps, individuals convicted of DUI because of breath tests on those troubled machines should be able to seek post conviction relief based on this newly discovered evidence. Faith needs to be restored that the machines work properly and that innocent people are not being wrongfully convicted.
Update: We have just learned that on April 15, 2010, the Hillsborough County Sheriff’s Office created a “new system” to delete more than three years worth of the digital video tape evidence by erasing the video tapes from the hard drive. We have been told by officials at the Hillsborough County Sheriff’s Office that now no one can retrieve this video tape evidence. Luckily, Steven Daniels with DUI Consultants, LLC, has many of the video tapes. We also have a copy.
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