Florida Supreme Court Rules DUI Defendants Didn’t Adequately Subpoena Breathalyzer Codes – Ulloa v. CMI, Inc.

November 13, 2013 by David S. Seltzer

An ongoing issue for drunk driving defense attorneys is how exactly DUI defendants may confront the witnesses against them. This is difficult to do with a machine—and most alcohol-intoxicated driving cases are built around Breathalyzer test results. There’s also concern among DUI defendants and their attorneys that the machines, which are made by a private company, could be malfunctioning or intentionally over-sensitive in some way. As a result, numerous Florida defendants have sought the source codes of the Intoxilyzer 8000, a machine used by Florida police agencies, to assess the accuracy of their readings. In Ulloa v. CMI, Inc., the plaintiffs subpoenaed CMI—the Kentucky-based maker of the Intoxilyzer—for the source codes, but not for any employee’s testimony. The company challenged the subpoenas as incorrectly served, and the Fifth District Court of Appeal agreed. The Florida Supreme Court upheld that ruling.

DUI defendants Alejandro Ulloa, Eric Jackson and Bradley Leonard sought only the source codes of CMI’s Intoxilyzer. Two asked for the company’s custodian of records to bring the source codes to the defendant’s attorney’s office; one allowed them to be mailed in lieu of a personal appearance. All three threatened contempt of court for failure to appear. CMI moved to quash these subpoenas, saying that because CMI is a nonparty and has no offices in Florida, DUI defendants must follow the procedures outlined by the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. Florida trial courts lack power over nonparties outside Florida, and such nonparties are not provided for by Florida’s service of process statutes. The county court denied all the motions to quash; the circuit court consolidated all cases and denied as to the code-only subpoenas, but quashed as to those requesting employee testimony. The Fifth District found that all should be quashed.

The Florida Supreme Court took up the case because it conflicted with decisions from other district appeals courts. The issue, it observed, is whether a subpoena can be valid if it is served on an out-of-state corporation’s registered agent within Florida, to obtain out-of-state documents or witnesses from a non-party. The high court ultimately said no. A subpoena for a witness in a criminal case extends only to the state borders, it noted. The Uniform Law exists to permit states to subpoena each other’s citizens; it is reciprocal and requires courts to work together. This law clearly applies to witnesses, the Florida high court said. Applying Black’s Law Dictionary, the court decided that “to subpoena” also encompasses production of documents. This is consistent with a majority of other state Supreme Courts, the court said, and Florida’s version of the Uniform Law does not exclude documents. Finally, it noted, a different holding might make it impossible to compel production of documents. Thus, it approved the Fifth District’s decision.

This issue might seem small or technical, but it clarifies something that has become important to Floridians accused of intoxicated driving. These defendants are now able to compel the production of the CMI source code, something that could have been impossible if the court had felt compelled to rule that no procedure exists for this in Florida. Courts are therefore one step closer to considering whether the Intoxilyzer 8000 is accurate. That’s vital, because when the primary evidence of a crime comes from a machine, the defendant can and should demand to ensure that the machine is reliable. Breathalyzer manufacturers have resisted releasing this, calling it a trade secret, but no trade secret should trump a defendant’s constitutional rights.

If you’re charged with driving under the influence of alcohol or drugs in Florida, call Seltzer Law, P.A., today to discuss how we can help. You can reach us through our website or call, 24 hours a day and seven days a week, at 1-888-THE-DEFENSE (1-888-843-3333).

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