Florida DUI Blog : Miami Attorneys & Lawyers for DUI Defense in Florida

This brain teaser puzzle tests your ability to identify a common shared attribute of the group and identify the “odd man out.”

Simple enough. So which of the following doesn’t belong in the list? And why doesn’t it?

(A) Beckman Coulter, Inc. blood alcohol gas chromatograph

(B) CMI, Inc. Intoxilyser

(C) Decatur Electronics, Inc. radar guns

(D) Point Blank Solutions, Inc. bullet proof vests

(E)   Scott Specialty Gases, Inc. Intoxilyser 8000 Dry Gas Standard cylinders

(F)   Taser International Inc. tasers

Here’s the hint: ISO certification. A pretty sure guess would be (B). All the other companies proudly boast their ISO 9000 certification. To the best of my abilities, I cannot find a similar claim by CMI.

So why does ISO certification matter? ISO stands for the International Organization for Standardization.  Originally ISO intended to provide minimal standards for manufacturing quality to be used throughout the world.  ISO standards have expanded beyond manufacturing quality control into other areas of interest such as laboratory accreditations and software quality standards.

One such standard, ISO 9000, defines minimum guidelines for quality management in the manufacturing process. This voluntary certification process is designed to provide consistency in the manufacturing process that companies use. Companies are required to have a documented quality control system and their employees must follow these established procedures.

ISO 9001:2008 specifies requirements for aquality management system where an organization

• needs to demonstrate its ability to consistently provide product that meets customer and applicable statutory and regulatory requirements, and
•  aims to enhance customer satisfaction through the effective application of the system, including processes for continual improvement of the system and the assurance of conformity to customer and applicable statutory and regulatory requirements.

It is important to note that the ISO 9000 certification process certifies the quality control system of companies, not the quality of their products or service. 

Still, it would be comforting to know that a machine and software that can be used as evidence against you was developed with some recognized quality standards in place. My apologies and congratulations to CMI if they have become ISO 9000 certified. If they aren’t, the State of Florida should require ISO certification for CMI. It’s just that important.

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 I was reminded that a DUI is truly a “classless” crime when a colleague brought a news report to my attention about a Pennsylvania physician who got his eighth DUI. DUI’s are not confined to any particular socio-economic sector of our society, and even the most educated and most trusted people are not immune. 

In our home state, a physician’s DUI and unchecked alcohol problems were a harbinger of future encounters with the legal system. Dr. Akram Ismail was arrested in 2005 for DUI. His subsequent behavior escalated into a confrontation with U.S. air marshals at JFK airport. In October 2009, the doctor was charged with murder for hire.

The consequences of a DUI conviction are high for everyone, and physicians may risk their professional livelihood as well.  In Florida, as in many states, physicians and other professionals are regulated by a board that reviews their conduct.  Although Florida is self-reporting, a physician who does not report a DUI risks disciplinary action.

Physicians who continually drink and drive, such as the unfortunate Dr. Ismail, put their employers at risk as well. Some hospitals are putting programs in place to monitor and help physicians who have had DUI convictions.  

A DUI can ruin a career and should not be taken lightly. A DUI defense attorney can help fight the charges and should be consulted as soon as possible after receiving a citation. 

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Sentencing can be a complex issue, and mitigating circumstances may lessen a convicted defendant's sentence.   Which mitigators may apply can be contentious, as illustrated in the case below discussing downward departures allowed in felony DUI convictions.

Second DCA

Kezalv. State, No. 2D09-1010, decided July 9, 2010 (pdf) (holding that two statutory mitigators applied in a felony DUI case)

Florida Statutes Section 921.0026 applies to any felony conviction committed after October 1, 1998, except for a capital felony.  Felony DUI is not a capital felony, and the DCA relied on  State v. VanBebber, 848 So. 2d 1046, 1049 (Fla. 2003), which held 921.0026(2)(j) applied to felony DUI convictions.  Accordingly, downward departures are allowed for subsections 2(j) and 2(c) (if it applied):

(2) Mitigating circumstances under which a departure

from the lowest permissible sentence is reasonably justified

include, but are not limited to:

. . . .

(c) The capacity of the defendant to appreciate the

criminal nature of the conduct or to conform that conduct to

the requirements of law was substantially impaired.

. . . .

(j) The offense was committed in an unsophisticated

manner and was an isolated incident for which the defendant

has shown remorse

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In a major step toward allowing defendants to examine Intoxilyzer 8000 source code, the Second DCA just released its opinion in CMI v. Landrum, Case No. 2D09-5502, decided June 18, 2010 (pdf).   The appellate court held that the trial court correctly ruled when it did not quash a subpoena for CMI's source code.  

Landrum filed a motion to suppress results of an Intoxilyzer 8000 breath test on the basis that the machine was not approved for use in Florida.   The source code was necessary to prove this, and Landrum subpoenaed the code from CMI.  When CMI moved to quash the subpoena, the trial court denied their petition.

On appeal, CMI argued that it was an out-of-state corporation.  CMI argued that any subpoenas for the source code fell under Florida's Uniform Law., and Landrum's subpoena was non-conforming. The court explained: "The Uniform Law allows for the testimony of material, out-of-state witnesses who would otherwise be beyond the subpoena power of the forum court, and it establishes uniformity in the procedure by which the out-of-state witnesses are compelled to participate in criminal proceedings."

The Second DCA did not buy CMI's argument  that it was an out-of-state corporation simply because it had no employees, offices, or documents.  Instead, the court considered that CMI was authorized to do business in Florida, does business in Florida, and has a registered agent in Florida.   Accordingly, the Uniform Law does not apply, and the source code was within the subpoena power of the trial court.

Congratulations to attorney Robert Harrison for this victory!

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This week's cases make a nice pair of bookends, illustrating the complexity of sentencing.

Second DCA

McGarrah v. State, No. 2D08-3262, decided June 11, 2010 (pdf) (remanding for illegal sentence in DUI manslaughter)

The Court remanded because a 17 year sentence for DUI manslaughter was illegal.  Although a DUI manslaughter has a maximum statutory penalty of 15 years,  the plaintiff was sentenced to 17 years of incarceration.  A sentence can exceed the statutory maximum for an offense, but only if the lowest permissible sentence under the Criminal Punishment Code exceed the statutory maximum for that offense.  The plaintiff scored out a lowest permissible sentence of 15.593 years, which was higher that the statutory maximum.

Fourth DCA

Sims v. State, No. 4D08-5040,decided June 9, 2010(pdf)  (remanding for illegal DUI manslaughter senence)

The Court  remanded for an illegal mandatory minimum sentence for a DUI manslaughter charge. In 2008, the trial court sentenced the appellant  according to the statutory mandatory four year minimum in effect.  However, the appellant committed the offense in February 2007, five months before the new four year mandatory minimum went into effect  for DUI manslaughter.  The time of the offense is used for sentencing purposes.

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No matter how famous you are, no matter how much money you have, you are not immune to a DUI. Too often fame brings an unwanted role-model status, but driving while impaired is not something to emulate.  

Celebrities and the rich have the same shortcomings as the rest of humanity, and sometimes they fall prey to poor judgment.  A recent article surveys some celebrities accused of DUI.

These fortunate few can afford drivers or chauffeurs.   Their next employer will not disqualify them because of a DUI conviction.  Their fines are a proverbial drop in a very large bucket.

For most people, however, a DUI can be a life altering experience.   Most people's next paycheck depends on their jobs, and in the sprawl of most of the United States, driving is a necessity.  (The Florida Supreme Court doesn't think so, but more on that at a later date.)  Fines and fees add to financial distress.  A DUI conviction may even result in professional sanctions, and people cannot be rehired in their profession as one Florida teacher has sadly discovered.

So, I hope you enjoy reading about the foibles of the rich and famous.  By definition, celebrities are interesting people, and there is a little Schadenfreude in us all. 

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Fact: It is hard to build quality software. There are numerous factors that go into the quality of software, including the skill of the developers, the development process, the testing process, the language used, the number of developers, and the complexity of the program. 

As one of the icons of the software industry once opined:

If builders built houses the way programmers built programs, the first woodpecker to come along would destroy civilization.

-Gerald Weinberg, Weinberg’s Second Law.

Fortunately for civilization, it really doesn’t matter that all software is well built and reliable. The world won’t end if a couple of pixels don’t display a certain shade of color on your screen. Slightly more annoying and costly mistakes occur when your favorite word processor loses that document you worked on all last night.

However, the quality of software should be high when the stakes are high.  Few people would find a crash in the software of an implanted heart pacemaker merely annoying or a miscalculation in the software of a Boeing Airbus a minor inconvenience.

The stakes are high when a person can be wrongly convicted of a DUI – a crime that follows you for life and stays on your driving record for 75 years in Florida – a crime that can send a person to jail. In the case of repeated offenses, the person can become a convicted felon.  

So, what steps are being taken by CMI, Inc. to ensure that their Intoxilyzer 8000 software is correct and reliable? What is their quality process?   What is CMI doing to ensure that their equipment works in the field – reliably and accurately? 

Too much is at stake for us not to have the answers. 

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You may not be aware of Florida’s Implied Consent Law, but this law allows an officer to administer state approved tests to gather physical evidence against you to prove a DUI.  

When you get a driver’s license in Florida, as in most states, you are agreeing to take a urine test, breath test, or other physical tests if you are stopped for a traffic violation and the officer has “reasonable cause” to believe that you were driving under the influence.  These tests include field roadside sobriety tests, urine tests, blood tests, and evidentiary breath tests. Taking one test does not preclude you from being asked to perform other tests.

The officer does not have to tell you that these tests are voluntary.  If you refuse, however, the officer must tell you the consequences – and there are consequences. Refusal to perform the tests is a misdemeanor crime in itself and will cause you to lose your license for one year (or 18 months if this is not the first refusal.)  

Another common misconception is that Miranda warnings apply to these tests. Courts consistently hold that Miranda does not apply to gathering of physical evidence, which is the purpose of these tests. So be aware that the Miranda warnings are not always required before the administration of field sobriety tests or for questioning at a traffic stop.

However, there are several points to remember regarding implied consent. First, these tests can only be conducted incident to a lawful arrest. Being under arrest is not always apparent – a skilled criminal defense attorney can examine the facts of your case to assess whether the arrest was lawful.   Second, the officer must have a “reasonable cause” to believe that the driver was impaired. For example, a urine test should only be requested if there is a reason to suspect impairment due to drugs. Third, if you refuse, the officer cannot misadvise you of the consequences or your ability to refuse. Fourth, a skilled attorney may be able to determine if you should have been given Miranda warnings. Finally, the tests must be state approved and administered by qualified testers.

Bottom line, driving is a privilege to be given and taken away by the state. But is there a constitutionally protected right in your driving privilege? More on that in a later post. 

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I previously asserted that secrecy for software source code is as bad as secrecy is for government process. And, the secrecy is bad for source code on several different levels. One of the issues that I will discuss in a later blog is violation of the Confrontation Clause.

Another issue was summed up aptly in a Yale computer science research project:

“Among all the engineering disciplines, computer software is probably today's least reliable artifact widely used in our society.”

Like alchemists of old, mathematicians doggedly seek a proof that software is bug free. Recent research has focused on developing certified bug free software, but the techniques are not yet widely applied or adopted. 

A humbler goal is simply proving that software correctly meets requirements. Usually two paths are taken in this endeavor: one is the Open Source Initiative model, and the other is process improvement driven.

The Open Source Initiative folks take the view that sunshine is good for source code. The more eyeballs on the code, the more likely that defects will be found and fixed. The reliability of open source products has become widely acknowledged with the success of products such as Linux.

The process improvement folks focus on the ability of an organization to reliably produce, release after release, software that correctly meets its requirements. Organizations are usually measured by certification by bodies such as the International Standards Organization (ISO).

Open source code clearly is not for CMI, Inc., manufacturer of the Intoxilyzer. The company fights disclosure of its source code at every turn, usually arguing the intellectual property and proprietary nature of the software. 

But what is possibly proprietary about how they develop their products? Is it well tested? Is it correct? Does it meet requirements? What are those requirements?  And, what are the bugs – we know they exist. Are they relevant to guilt or innocence?  There lies the question.

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