Split Decision on DUI Tests Could Affect Drunk Driving

Broward Judges are Divided in Their Rulings About a DUI Breath-Test

By EVAN S. BENN – Miami Herald – August 20,2005
[email protected]

Broward County’s judges have begun to rule on an issue that could
affect hundreds of drunken-driving cases.

So far, seven judges have ruled on the validity of DUI breath tests
that may have been incorrectly calibrated. On Friday, Judges Gary Cowart
and Michael Kaplan fell on opposite sides of the issue.

Cowart joined four other Broward judges who have decided to allow
evidence from the disputed Intoxilyzer 5000 machines, which are supposed
to be calibrated with distilled water.

But Kaplan and another judge have made the opposite decision,
upholding defense motions to throw out results from breath-test machines
that used tap water.

In 2004, defense attorneys discovered that the Broward Sheriff’s
Office and Davie Police Department had been using tap water for the
monthly calibrations. The Florida Department of Law Enforcement
established rules in 2001 that called for distilled water to be used in
the calibrations.

The police agencies have since fixed the problem, but hundreds of
people arrested for drunken driving have filed motions to have their
charges dismissed.

Judges Fred Berman, Leonard Feiner, Joel Lazarus, Jeffrey Levenson and
Cowart will allow the disputed DUI tests in their courts, according to a
spokesman for the Broward State Attorney’s office.

“We applaud the actions of the judges who understand that the
scientific evidence shows that the kind of water has absolutely no effect
on the testing,” the spokesman, Ron Ishoy, wrote in an e-mail to The

Judges Robert Zack and Kaplan have ruled in favor of defense attorneys
in throwing out the tests, Ishoy said.

Six Broward county judges have yet to rule on the issue.

“We intend to appeal the decisions of the two judges who ruled the
other way,” Ishoy said.

But defense attorneys cheered the judges who ruled against the
disputed DUI breath tests

“In criminal law, the statutes are construed in favor of the
defendant. It’s the state’s burden to prove guilt beyond a reasonable
doubt,” Hollywood defense attorney Jerome Rosenblum said. “I think what
Judge Zack did was the right decision — to give the defendant the
benefit of the doubt.”

BSO processed 4,589 DUI suspects in 2004, while Davie police reported
271 DUI arrests in the same period.

More than half the suspects charged by BSO last year did not submit to
breath testing; they either refused testing or were tested through blood
or urine.

“My real concern is for the defendants whose readings were right
around .08,” Rosenblum said, referring to the legal limit for
blood-alcohol content. “You don’t want to convict someone erroneously.
You want it to be based upon reliable evidence.”

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