Montana Supreme Court Declines to Suppress Test Results From Intoxilyzer in DUI Case – State v. Johnston

August 10, 2011 by David S. Seltzer

Here in Florida, and in several other states, the standard breath testing machine is the Intoxilyzer 8000. This is the most recent in a series of “breathalyzer” tests used by Florida law enforcement to determine whether drivers are over the 0.08 legal limit. Like all machines, the Intoxilyzer must be maintained and inspected to ensure that it gives correct readings. If police agencies don’t do this, any DUI arrests they later make are suspect and could be challenged by an experienced south Florida drunk driving criminal defense lawyer. A similar situation in Montana created that state’s Supreme Court ruling in State v. Gavin Johnston. Johnston successfully moved in trial court to suppress Intoxilyzer evidence, but the state high court overturned it, ruling that the Intoxilyzer did not need to be field-tested as often as the trial court believed.

Johnston was arrested and breath-tested on April 23, 2010, using the Intoxilyzer 8000. The machine had been inspected and calibrated on April 14 and tested on April 15. He blew 0.12 and was charged with fourth-offense DUI. At trial, Johnston moved to suppress his test results, arguing that the machine should have been field-tested within a week of his breath test. This assertion was based on the Montana Supreme Court’s ruling in State v. Gieser, earlier in 2011, which referred to state administrative rules requiring that breath test machines be inspected and calibrated on a “weekly basis.” The trial court noted that the rules had been changed in 2007 and now required monthly testing and calibration. Nonetheless, it said it was bound by state Supreme Court precedent and suppressed the test result. The state appealed.

The Montana Supreme Court made short work of the issue. The undisputed facts show that the machine was properly calibrated and tested according to the most recent 2007 rules, it noted. The statement in Gieser that machines should be tested weekly was an error because the rule had been changed. Furthermore, it said, its decision in Gieser was not about when breath test machines should be tested; it was about ineffective assistance of counsel. Because the testing of the machine was not an issue in that ase, the incorrect statement was dicta without binding force. A previous opinion, State v. White, was not controlling because the test in the case was administered before the rule change. Thus, it overturned the trial court’s decision and ruled that Johnston’s breath test was legal and admissible.

As a Miami DUI defense attorney, I’m happy to say that the calibration and testing requirements in Florida law are not generally disputed. However, defense lawyers frequently do dispute whether those requirements have truly been met. In some cases, law enforcement officers have been known to put machines into service even when they fail tests, sometimes unplugging the machine when it clearly will fail. Machines also sometimes flag the breath sample as insufficient even when the driver has blown more than enough air, because of a software problem. And Florida has seen some high-profile challenges in the last few years to the practice of not releasing the source code to the machine’s software, which some Fort Lauderdale intoxicated driving defense lawyers say makes it impossible to see if the test is accurate. As of this spring, the machine was not even admissible in two Florida counties, casting doubt on its future — which is why Florida DUI defendants should think twice before pleading guilty.

Seltzer Law, P.A., represents people in Miami-Dade, Broward, Palm Beach and around the state who are accused of driving under the influence of alcohol or drugs. If you or someone you love is facing charges and you’d like to know more about how we can help, call us toll-free anytime at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message through our website.

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