The 12th Circuit State Attorney’s Office reviewed DUI cases this week and will send letters notifying defendants who were tested on five Intoxilyzer 8000s that the machines were not working properly and therefore the breath-test results will not be used as evidence against them.

Prosecutors will still pursue DUI charges in those cases where there is other evidence the driver was impaired.

But the lack of breath-test results could mean dropped charges and better plea deals for some drunk driving suspects.

“It doesn’t mean this is the end of those cases, just we’ll be prosecuting them without the breath tests,” said Assistant State Attorney Spencer Rasnake, supervisor of the division that prosecutes most DUI cases.

The flawed breath-test results play a role in about one of every three pending DUI cases in Sarasota County, and just a handful of cases in Manatee County.

The state attorney’s office started reviewing cases the day after the Herald-Tribune reported this week that drivers across Florida have been arrested and convicted of DUI charges based on flawed Intoxilyzer 8000s that reported impossible results.

For instance, the machine at Sarasota County’s South County jail in Venice had reported that some drivers — who have a maximum lung capacity of about five liters — blew 10, 11 or even 12 liters of breath into the machine. That improper sample size can taint the results, experts say.

The problematic machines stayed in service, unquestioned, possibly for as long as five years because state officials never tested a key component or performed mandatory reviews of every breath test.

Inspectors in the process of checking every machine in the state this year have found that about 40 percent of 231 machines checked so far were incorrectly measuring the flow of breath into the Intoxilyzer 8000.

In July, inspectors found four of the six machines in Sarasota County and one of the four machines in Manatee County were incorrectly measuring the flow of breath into the Intoxilyzer 8000.

Prosecutors will no longer use breath-test results in about 50 of the 230 pending DUI cases from the worst machine, at the South County Jail in Venice. A Sarasota County judge has ruled the results from the Venice machine are unreliable.

And prosecutors decided to no longer use results in 32 cases from the other three flawed machines in Sarasota County — two used in DUI deputy patrol cars and one backup machine. Tests on those three machines account for 32 pending DUI cases.

Manatee County prosecutors are still reviewing how many cases are affected by the flawed machine there, but Assistant State Attorney Heather Doyle said it was a backup instrument and that “a very small number of cases” will be affected.

The Florida Department of Law Enforcement fixed the machines in July, but inspectors never noted how far off the breath-volume calculations were, and there is no way to know how long the machines were working improperly.

The breath test is one of the most powerful pieces of evidence in DUI trials: If the Intoxilyzer 8000 says a person’s blood-alcohol level was above 0.08 percent, the law states a jury should assume the driver was impaired.

The defense attorneys in Venice who first noticed the problems are pushing to have all breath-test results from all Intoxilyzer 8000s thrown out. Defense attorneys across the state are looking into whether flawed machines caused problems in their regions.

FDLE started quietly fixing the machines in January and putting them back into service. Sarasota County’s machines were fixed in July. FDLE officials are not informing defendants who may have been wrongfully convicted or unfairly lost their driver’s licenses after being tested on the flawed machines and then convicted.

The breath volume is important, ensuring that air comes from the deep part of the lungs, where blood and air interact inside the body. The first 1.1 liters of exhaled breath can come from the mouth, throat and esophagus and contain alcohol still in the mouth or other contaminants that can produce artificially high results.

A machine that incorrectly reads one liter of breath as two liters could be testing a bad sample. And a machine that incorrectly reads two liters as one could contribute to the conclusion that the user had refused to blow sufficient volume, which can mean the loss of a driver’s license as if the test had been refused.

FDLE stands by the results from Intoxilyzer 8000 machines, although it has not done an analysis of the breath test data.

Officials are relying instead on a requirement during the breath tests that two different samples have to agree with each other. That, they say, ensures that the breath samples are good and the breath-test results are reliable, said Laura Barfield, who leads the FDLE program for approving and maintaining alcohol testing equipment.

Charged with DUI in Sarasota? If so, call 941-916-3627 right now to schedule your free legal consultation with a defense attorney at Musca Law.

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But as the case unfolded, so did the unusual circumstances of Scott’s life. He was a Marine captain who had earned three Purple Hearts for injuries and the Bronze Star for heroism in Afghanistan and Iraq. He had nearly died from blood loss, suffered severe head trauma and once dug a mass grave for Iraqi civilians.

It’s these mental scars of combat, his lawyer says, that are to blame for the accident. Brain damage and post-traumatic stress disorder caused Scott to blackout in a dissociative episode the night of the crash, said Scott’s defense attorney. Scott has pleaded not guilty, and his attorney will offer an insanity defense at trial.

The other driver, Pedro R., left behind a wife, two children and three stepchildren. His widow is broken-hearted and believes the military deserves some blame for the accident for not treating the Scott’s disorder.

Remarkably, those sentiments are echoed by Marine Corps investigators who examined the case and wrote an 860-page report with recommendations for top brass. The report says the corps should be more thorough in evaluating and treating post-traumatic stress disorder, especially in Marines with brain injuries.

“This investigation reveals a disturbing vulnerability in the support we provide our combat veterans suffering the invisible wounds of PTSD,” wrote Col. John P. Crook of the U.S. Marine Corps Reserve, in a Sept. 26, 2010 letter. “It is folly to expect a wounded mind to diagnose itself, yet our Marines still depend on an anemic system of self-diagnosis and self-reporting.”

Prosecutors won’t comment about the case. Scott is in a Tampa jail’s psychiatric ward awaiting trial.

In a call to his father after the crash, he said he wished he’d died in combat.

“I don’t know why I wasn’t killed any of the times I was wounded,” Sam Scott quoted his son as saying. “I wish I had been.

“At least it would have been honorable. And an innocent man wouldn’t be dead.”

Scott Scott was born and raised near Mobile, Ala. His desire was to be a fighter pilot, but he discovered during officer candidate school that he couldn’t fly planes because of a blood pressure problem.

Still, after the Sept. 11 attacks, he decided to continue in the Marines. What followed was a battle-scarred career, as detailed in the Marines’ investigative report.

– In April 2003, Scott witnessed “a bus full of casualties and a sea of blood gushing out.” Scott buried some of the Iraqi civilians — and then dug them up when relatives came looking.

– In October and November 2004, Scott was wounded in separate attacks while on patrol in Iraq.

– In 2006 and 2007, Scott rode in convoys that were hit seven times by roadside bombs in Afghanistan.

– In June 2009, Scott lost consciousness and bled profusely after a rocket attack in Iraq, leading rescuers to believe he had died.

Scott’s command in Iraq expressed concern that Scott was suffering from PTSD. About two weeks after the attack, Scott was found removing sutures from his arm with his Swiss Army knife. An assessment showed he had “mild deficits” in verbal learning and difficulty with attention.

Two weeks after that, he was given a neuropsychological assessment and declared “cognitively fit for full duty.” His superiors then sent him back to a California-based wounded warrior battalion.
Said his father: “He was very different than the person he was when he went into the Marines.”

Scott’s family noticed troubling behavior: Scott would fall asleep yet continue to talk gibberish. He didn’t remember certain events. He drove to the store to buy sunglasses and woke up in Mexico after he hit a curb on a roadside. Sam S. believes his son was suffering from dissociative episodes then.

There were also dizzy spells, flashbacks and headaches — all PTSD symptoms. By November 2009, Scott was also drinking heavily.

Scott told friends and family to keep everything quiet because he didn’t want to harm his career or his chance to command a rifle company.

In February 2010, the Marines found Scott available for “full duty and worldwide deployable,” and weeks later he was ordered to serve at U.S. Central Command at MacDill Air Force Base.

But he had never been to Tampa, and he wanted to return to Afghanistan with his battalion.

“The decision to send Capt. Scott to (MacDill) left him feeling disappointed and abandoned, and exacerbated the symptoms of his PTSD,” Col. Crook wrote.

He arrived in Tampa on April 23. Two days later, before he could even report to his new post, police said he crashed into Pedro’s car and killed him around 4 a.m.

“We believe that he was having a dissociative episode at the time and believed he was on a deployment,” said Scott’s attorney.

Pedro, a mechanic, was driving home with his wife after helping a friend whose car had broken down. Carmen Rodriguez, Pedro’s wife, told The Associated Press that she believes the Marines bear some blame in her husband’s death because Scott wasn’t properly treated for PTSD or brain injury.

“They should have helped him before,” said Rodriguez, who was also injured. “Why did they wait until my husband died?”

The widow says church and her job are helping to sustain her.

Dr. Francis Abueg, a Sunnyvale, Calif. psychologist who specializes in PTSD, said it’s common for those suffering from the disorder to have dissociative episodes, or blackouts. He knew of other cases in which veterans had dissociative episodes that led to criminal charges.

“When you throw in traumatic brain injury, those symptoms are intensified,” he said.

The Marines appear to acknowledge some blame. In the report on the crash, Crook wrote that Scott shouldn’t have been sent to MacDill due to his untreated PTSD and history of mental instability. Investigators discovered that Scott was taking prescription medications to treat anxiety, schizophrenia and depression — in addition to drinking.

Cook wrote that separating him from those he had served with “further exacerbated his psychological trauma and reliance on alcohol.”

Cook wrote that the Marine Corps should better screen and treat combat veterans for PTSD, remove the stigma of having the disorder and reduce the acceptability of alcohol.
Scott’s attorney maintains that both Pedro and Scott are “casualties of war.”

“If Scott Scott had not served four deployments in Afghanistan and Iraq, this never would have happened,” Scott’s attorney said.

If not for the crash, Scott’s attorney added, Scott probably would have been promoted — and sent on a fifth combat tour.

Updates as they are available.

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The enforcement wave ran from Aug. 19 to Sept. 5, and more than 10,000 law enforcement agencies nationwide conducted the operation, according to sheriff’s department statements Friday.

Sarasota deputies arrested 40 people for driving under the influence, and Manatee deputies nabbed the another 30 people for the same charge.

The push in Manatee County also led to 273 speeding violations, 61 seat belt violations, 34 suspended license violations, 16 uninsured motorist violations and two child restraint violations.

Manatee deputies also looked beyond traffic infractions, resulting in 13 felony arrests, 28 other arrests, three drug arrests and one fugitive apprehended.

If you are one of the 70 people charged with DUI, or you were charged in another matter, the Sarasota DUI attorneys at Musca Law can help you. Contact us today to discuss your legal options.

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As a result, prosecutors are banking on an unvetted, virtually all-or-nothing approach in DUI trials that will play out in several courtrooms starting today.

A dispute over the state’s only alcohol breath-test machine has left prosecutors in a pinch, only able to use the results in court if they have an expert testify to its accuracy.

For years, prosecutors felt their only option was Matthew Malhiot, a former Florida Department of Law Enforcement employee who charged them $1,200 a day to appear in court. The plan was costly, but he was an independent expert and it had worked the only time it was tried.

And Malhiot, who says he gave prosecutors a $30 per hour price break and bent over backwards to accommodate Sarasota and Manatee’s prosecutors during their crisis, was scheduled to come to town today and Friday for some more trials.

But late last week, the state attorney’s office refused to pay some of Malhiot’s invoices: $240 for each case where they used his name as an expert and the defendant pleaded to the charge before Malhiot had to testify.

Much to the surprise of DUI defense attorneys and judges, prosecutors entered court Monday and told them they had cut ties with Malhiot over the bills.

Instead, prosecutors say they will simply have current FDLE employees testify about the machine — a plan defense attorneys say will not work because the expert is supposed to be independent and impartial.

“You’ve got the fox guarding the henhouse,” said a Venice defense attorney. “They are testifying that their own procedures are scientifically valid.”

Since local judges a couple years ago ruled the breath-tests were not on their own reliable evidence in DUI cases, prosecutors have dropped or pleaded down dozens of charges against drivers arrested for DUI.

Judges this week will have to decide whether the FDLE employees can suffice as experts and validate the Intoxilyzer 8000 during one of three DUI trials.

If prosecutors succeed, they could all but eliminate the scheduling headaches and extra costs of bringing in Malhiot.

But if they fall short, and a judge rules the new witnesses are not qualified to testify, Sarasota and Manatee county prosecutors could be in a major bind.

By alienating their star expert witness, they could be stuck without a way to tell juries about alcohol breath-test results for the foreseeable future. That would hinder their ability to prosecute drivers in DUI cases.

DUI prosecutions were already a mess before this week.

Suspected drunken drivers blow into the Intoxilyzer 8000, and the machine prints out a report about their blood-alcohol content that is powerful evidence in court. Because of that, the drivers have a right to know how the machine works, area judges have ruled.

The Intoxilyzer 8000′s manufacturer, CMI Inc. in Kentucky, has ignored subpoenas for the computer code inside the machine, causing prosecutors to have to find a workaround.

Assistant State Attorney Spencer Rasnake, the supervisor over misdemeanor DUI prosecutions, said the office will instead call FDLE employees Roger Skipper and Laura Barfield as their experts.

Barfield is head of the FDLE Alcohol Testing Program, and Skipper works on the machines for FDLE. Defense attorneys are challenging their objectivity and say cannot be used in court because FDLE approves the machines for use in Florida and FDLE employees would have a vested interest in saying the machines work correctly.

Previous prosecutors, who refused to use the FDLE experts because they were not independent “were just being conservative to make sure,” Rasnake said. “That was the track I was going to take. It worked, so why not follow it.”

But the bills from Malhiot forced the hand of prosecutors. Rasnake said he asked an assistant to schedule the trip for Malhiot but learned the bills were not going to be paid and that he would not be used.

“She was told from our higher-ups that nobody was willing to pay that invoice,” Rasnake told County Judge David Denkin on Wednesday morning.

The bottom line for you is: if you’ve been charged with DUI, contact a Sarasota DUI attorney ASAP to discuss what can be done for you. There are many legal defenses, whether the Intoxilyzer 8000 is a factor in your case or not.

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Suspected drunken drivers blow into the Intoxilyzer 8000, and the machine prints out a report about their blood-alcohol content that is powerful evidence in court. Because of that, the drivers have a right to know how the machine works, area judges have ruled.

But so far the machine’s manufacturer, CMI Inc. in Kentucky, has ignored subpoenas for the computer code inside the machine. That means prosecutors can only use the breath-test results in court if they have an expert testify to its accuracy.

So this week, prosecutors again will dip into a state fund and spend around $3,000 — the cost of the expert’s flight from Georgia, hotel and two days of testimony. They hope to get verdicts on four or five cases — less than one weekend’s worth of DUI arrests.

If the situation stays the same, the expense could become almost a weekly ritual, totaling as much as $156,000 a year.

While not every DUI case requires the expert testimony, two or three judges are scheduled to hear drunk driving trials every week at the Sarasota, Bradenton and Venice courthouses.

The five-year battle over the Intoxilyzer 8000 has put prosecutors in a pinch that has caused them to offer pleas to lesser charges and drop DUI cases, including one against a woman on her 11th drunk driving arrest.

Prosecutors must schedule the expert to be in court or risk having to go to trial with weaker cases that depend on evidence other than a breath test, such as a video of roadside sobriety tests.

Even if defendants end up pleading to the charge, prosecutors will have to pay. Like a hotel reservation, if prosecutors cancel too late, they will still end up paying his fee for reserving the days.

“It’s a significant burden on us, but we think we’re doing the right thing,” said 12th Circuit Chief Assistant State Attorney Ed Brodsky. “It’s important and we’re not going to compromise our prosecution of a drunk driver over this issue.”

Prosecutors can ask judges to make the defendants pay for the expert, but only if they are convicted. And no judge has yet ruled that shifting the cost to the defendant is acceptable.

Local law enforcement cannot simply go buy another brand of machine, because the Intoxilyzer 8000 is the only machine approved for use in the state by the Florida Department of Law Enforcement.

FDLE has no plans to approve another machine. And there will be no resolution until an appeals court somewhere in Florida rules differently — which could take years at this point, some defense attorneys say.

Brodsky says the money for the expert comes out of a state fund prosecutor’s offices can dip into for experts and extra costs of upholding the law.

But the office wants to cut down the cost and headache of scheduling an out-of-state witness who testifies across the country.

“We don’t want to have to rely on him,” Brodsky said. Prosecutors are looking for another expert who charges less and lives closer.

Defense attorneys do not think it will be that easy. “It’s been five years and they’ve only got this one guy,” an attorney said. “Are they going to find an impartial expert? It’s going to be difficult for them.”

And prosecutors recently considered bringing in the FDLE chief who headed up the effort to test the Intoxilyzer 8000 and approve the machine, Laura Barfield.

Barfield is slated to come to Sarasota next Tuesday and Wednesday to testify, but defense attorneys plan to fight against letting her testify because she is not an independent witness.

“They’re going to bring in the person who’s in cahoots with the machine?” he said.

Is all this neccesary? In light of justice, it absolutely is. If you’ve been charged with DUI in Sarasota or a surrounding area, contact our Sarasota DUI attorney right now for a free consultation. We can help you with your administrative and criminal case.

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From today through Sept. 5, Sarasota sheriff’s deputies say they will be engaged in enhanced DUI enforcement – especially at night and on weekends.

In Manatee, sheriff’s deputies, Bradenton Police and the Florida Highway Patrol will have special patrols from 5:30 p.m. today until 3 a.m. in areas with a history of DUI-related accidents.

Charlotte County sheriff’s deputies and Punta Gorda Police say, today through the Labor Day weekend, they also will step up DUI enforcement.

Don’t give police a reason to charge you with DUI this weekend. However, if you are charged with DUI, don’t assume your own guilt. Instead, contact a Sarasota DUI attorney at Musca Law. We can help you in regard to your driver’s license and your criminal case.

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Ryan C., 25, of Longboat Key, faces charges of DUI and third-degree felony child neglect.

Ryan and his daughter were discovered inside a disabled truck that troopers said was blocking the southbound lanes of traffic.

Authorities found a prescription bottle of the anti-anxiety drug Larazepam inside the car, which he claimed were prescribed to him Aug. 8.

Ryan was transported to Lawnwood Medical Center & Heart Institute for medical treatment. When troopers asked him to identify the girl in his truck, Ryan “acted as if he didn’t remember for a brief period and then stated her name” and indicated she was his daughter.

Ryan was transferred to the St. Lucie County jail, where he was being held Sunday night under a bond of $15,350.

If you’ve too been charged with DUI in Longboat Key or surrounding area, such as Venice or Sarasota, contact a Longboat Key DUI attorney at Musca Law right now. We can go over your legal options, free of charge.

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Lisa pleaded no contest on Thursday to the drunk-driving charge and was sentenced to six months’ probation, a six-month driver’s license suspension, a $1,000 fine and DUI school, according to the Sun Sentinel.

At the time of the car crash, Lisa’s blood alcohol was measured at 0.17, which is over two times the legal limit of 0.08.

County Court Judge Ginger Lerner-Wren reigned over the case.

If you’ve been charged with DUI in Sarasota or a surrounding area, contact Musca Law at 941-916-3627 for a free legal consultation. We’ve helped many people in your situation avoid being convicted of DUI. Contact us right now.

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Admittedly, he was too drunk to even walk properly.

When sheriff’s deputies approached him, Michael was eating a salad and had a cold, half-empty Icehouse beer in the front cup holder. When he got out of the truck he had to lean on it for support.

In some ways, it seems like a clear-cut drunken driving case, and yet the jury acquitted Michael of the drunk driving charge in a matter of minutes last week.

They did so due to one key detail: the truck was broken down and unable to even start.

“It is not against the law to sit in an inoperable car to eat a salad drunk,” said Michael’s defense attorney.

The deputy arrested Michael, 45, under a little-known element in Florida drunken driving laws that say someone can be guilty of driving under the influence even if the officer never saw them drive.

Prosecutors just need to prove someone had “physical control of the car,” that is, had the capability to drive the car to or from that spot. That usually comes into play when an officer shows up at a DUI crash and the drivers have already exited the cars.

But that also requires prosecutors to prove the vehicle was operable at the time.

At the trial, Michael and a friend told the jury that the truck had been stuck in a Walmart parking lot in Englewood since the starter gave out about 12 hours earlier.

On Feb. 28, just after 1 a.m., a Sarasota County Sheriff’s Office deputy investigated when he saw Michael sitting in the truck for at least 20 minutes.

The deputy saw keys resting on Michael’s lap, smelled alcohol in the truck, saw food in Michael’s mouth and on the floorboard. Michael refused to do sobriety tests or take a alcohol breath test, then slurred out the question, “Why are you arresting me for eating eggs?”

But the deputy never tried to start the car, or felt if the hood was warm, or saw any other signs it had been recently driven.

Without that, the state could not disprove Michael’s claim that the truck could not be started at the time, Michael’s attorney said. It took a jury only about five minutes to acquit.

Michael, 45, a pest-control worker with a DUI conviction from 2006, told the jury that he had driven to the Walmart in the afternoon to get a sub sandwich for lunch, according to Michael’s attorney.

The truck would not start, so he left it there and went on with his day, including going out and drinking with a friend. Michael wanted to get some things out of the truck that night, so the friend then took him back to Walmart and ended up ditching him there, Michael’s attorney said.

Michael decided he was too drunk to walk home so he sat in the inoperable truck and ate something to sober up, Michael’s attorney said.

The next day, it took two people to start the truck — one to turn the key and one to bang on the starter. The truck needed to have a new starter installed, Michael’s attorney said.

But despite his acquittal, Michael’s legal troubles are not over. Because he refused to take the alcohol breath test during his first DUI, prosecutors are charging him for refusing to take one during his February DUI arrest.

He goes to trial this week, where Michael’s attorney will argue Michael did not have to submit to a breath test when he was not in an operable vehicle.

If you’re facing DUI charges in Sarasota, you shouldn’t waste any time contacting a Sarasota DUI defense lawyer at our firm for a free phone consultation. Call 941-916-3627 right now.

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A botched DUI arrest last month exposed that the agencies had conflicting policies about some patrol zones on the busy six-lane road. University, formerly known as county line road, has long been believed to be the county line, but actually weaves back and forth between the two counties.

The DUI case was dropped by a judge after a defense attorney pointed out that a Manatee deputy had improperly arrested the driver in Sarasota County.

So this month, the top brass at the two sheriff’s offices compared aerial photographs of University with the official county line superimposed on it, fine-tuning where each county’s deputies can make arrests and stop motorists.

Afterward, Manatee County changed its administrative orders to jibe with Sarasota County’s version of where each county’s deputies have jurisdiction.

“Apparently, they had not updated theirs when the highway was widened,” Sarasota County sheriff’s office Col. Steve Burns said.

This is actually a very common thing to look at in a DUI case. Was the arresting deputy in his or here jurisdiction. As you can see, if the answer is no the charges must be dropped.

If you’ve recently been charged with DUI in Sarasota, it’s time you talked with a defense attorney about your legal defense. Contact a Sarasota DUI defense attorney at Musca Law today for a free phone consultation.

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