Volusia County criminal defense attorneys are claiming that breath tests administered by the Volusia County Sheriffs Office are invalid and must be thrown out. The basis for the attorneys' argument is that Volusia County Sheriffs Officer, Sergeant Edward Bowman, has not taken a basic course certifying him to operate the newest Intoxilyzer 8000 breath test machine. Sergeant Bowman, who is listed as the agency inspector for the Volusia County Sheriffs Office, is responsible for ensuring that VCSO's Intoxilyzer 8000 machines are in compliance with the Florida Department of Law Enforcement's standards.
Volusia County attorneys argue that Bowman, who was previously retired for five years, never took the required 16 hour course certifying him to maintain and operate the newer Intoxilyzer 8000 machines. Based on Bowman's lapsed certification, every breath sample taken by these VCSO machines are invalid and must be excluded from evidence. Due to the volume of D.U.I. arrests in Volusia County, hundreds of cases may be affected.
The State Attorney's Office responded that Bowman did take a four hour refresher course thus satisfying the requirement. They also note that Sergeant Bowman has been properly trained to operate the outdated Intoxilyzer 5000, which was taken out of service several years ago.
The crux of the defense attorneys argument is that Sergeant Bowman can not be responsible for maintaining an instrument that he was never trained on. If he was required by law to become certified, and has failed to do so, the breath test results will most likely be unreliable. If that happens, the results may not be allowed in as evidence. The consolidated motions filed by various defense attorneys will be heard soon by a county court judge.
Does this mean that all D.U.I. cases involving Sergeant Bowman will be thrown out if the judge suppresses the breath test results? Most likely not. Florida's Driving Under the Influence statute, 316.193, allows the prosecution to prove a D.U.I. one of two ways. They must show that the defendant was in actual physical control of a vehicle with a blood alcohol level above .08 or that while in control of a vehicle the defendant's normal faculties were impaired. To put it simply, the State Attorney can still prove a charge of Driving Under the Influence if the Officer observes indicators of impairment. We've all witnessed the D.U.I. indicators officers use to determine if someone is Driving Under the Influence: bloodshot eyes, odor of alcohol, slurred speech, unsteady gait, etc. So even if the breath tests that Sergeant Bowman collected are suppressed, the State Attorney may still go forward with criminal charges. However, this does not mean that these motions are not without merit. In the world of criminal defense every piece of evidence included or excluded is important to the outcome of a case. In the day of technology and television dramas, jurors rely and find merit in these breath test results. If successful with the motions, Volusia County criminal defense attorneys will have taken away a lot of ammunition from the prosecution's D.U.I. cases.
If you were recently arrested on the charge of Driving Under the Influence and would like to find out if this issue affects your D.U.I. case, please contact The Law Office of Bundza & Rodriguez, P.A.