Florida DUI Convictions May be Called Into Question as a Result of Poorly Maintained Breathalyzers.

Many criminal drunk driving cases in Miami, Ft. Lauderdale are won, not on the work of attorneys, but rather on one piece of evidence: the result of the breathalyzer test. The breathalyzer, specifically the “Intoxilizer” is a delicate instrument that must be carefully maintained. In fact, the Florida Department of Law Enforcement is responsible for calibrating and testing the accuracy of these breathalyzers against a control. The results of these tests are available to the public, and criminal defense attorneys throughout South Florida.

Recently it was discovered that one of the FDLE officers tasked with testing this equipment was tampering with the machines during the tests and thus skewing the results. Sandra Veiga was fired from the FDLE last October when it was discovered that she turned off breath-machines when it appeared they would fail inspection. The effect of this discovery has sent ripples through criminal defense community in South Florida.

In Broward County Florida, Judge Lee Jay Seidman excluded the breath results from a driving under the influence case where Ms. Veiga was a tester. There are hundreds of pending Broward cases that could result in a similar ruling from other judges. The question this raises is, what about the people who have already been convicted on the strength of breath tests where the intoxilyzer was maintained by Ms. Veiga?

It is rare to have a verdict or a plea overturned or set aside, however, this type of new evidence is exactly the circumstance that could bring about a new trial. Florida criminal law requires three things for a new trial based on newly discovered evidence: 1) the new evidence is material; (2) the new evidence probably would have changed the verdict; and (3) the evidence was difficult to discover.

There is no doubt that a case with a reliable breath result is completely different from one with a machine that was turned off every time it looked like it was going to fail. Accordingly, it may be difficult not to overturn these convictions

Miami Herald: Broward judge’s ruling in DUI case could affect 1,000 cases