Breath Testing News

Where do lawyers get their wacky ideas? One longstanding tradition in the law is the territorial jurisdiction of the court. Florida courts, most lawyers think, have jurisdiction only in the State of Florida. In CMI, INC. v. Alejandro, 5D10-4079, voodoo breath analysis meets voodoo law.

Florida has long faced an complicated engineering problem. How do we control the damage caused by a ton of machinery capable of hurtling down the highway at a mile a minute when the operators of said machinery are known to numb their senses with a concoction which slows reactions and impairs judgement? Our answer to this complicated calculus of mass, motion and metal has been to turn the problem over to politicians and lawyers. Who better to solve an engineering problem than those whose expertise is poetry and cheerleading.

When facing this engineering problem, the liberal artists, decided the best way to stop the machine operators from drinking would be for them to take a test after they smashed up their machine. Then, they bought a device operated by computer software that nobody is allowed to look at. The best way to instill confidence in the accuracy of their breath-testing regimen is to keep it confidential.

Fancy Orlando lawyers rode into Sanford ready to tangle with machine manufacture CMI, Inc. They, “served subpoenas duces tecum on CMI’s registered agent in the State of Florida.” “The subpoenas duces tecum served by Respondents did not require witness testimony, but only sought the production of the source code for the software version used in the current Intoxilyzer 8000 instruments.”

“CMI entered a special appearance for the sole purpose of challenging the
subpoenas duces tecum served on its registered agent.” The County Court denied the motion to quash and the Circuit Court of Appeals followed suit. On “second tier” review the Fifth District had a different view. “The subpoena power of a Florida court over a person or legal entity which is not a party in a lawsuit,” held the District Court, “does not extend beyond state lines. The only way to secure such out-of-state witnesses or documents in a criminal case is to follow the procedures of” the Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings.” §§ 942.01-.06, Fla. Stat. (2010).

The court did note that there is a conflict and that the Supreme Court will have to weigh in on the matter, but for us in the Fifth District, if you want out-of-state material, time to dust off that statute book.

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