Arrest Warrants Issued – DWI delinquent fine deadbeats.

Arrest Warrants Issued – DWI delinquent fine deadbeats. If that sounds like a debtors’ prison, a legal relic which was abolished in this country in the 1830s, that’s because it is. And courts and judges in states across the land are violating the Constitution by incarcerating people for being unable to pay such debts. Here’s the letter sent out by James P. Fisher, Commonwealth’s Attorney – Fauquier County

Dear Fauquier County taxpayer and citizen,

I am pleased to announce the final tier in the Commonwealth’s Attorneys delinquent fines and costs collections efforts.

Last week my office hand-delivered a stack of arrest warrants to be issued against the top delinquent offenders who have gone more than 6 months without paying their Drunk Driving fines.*

Warrants will we served by the Fauquier Sheriff’s Office, or in out of county cases by the authorities in such counties.

This tier of collections efforts is a continuation and escalation of the program where we have elected to pursue such offenders locally rather than through Richmond. I would also like to personally thank our County Treasurer Tanya Wilcox who has done an excellent job in collections efforts of those offenders who do not pay their court fines.  Tanya and her staff are largely responsible for returning local fine revenue to Fauquier County as our collections agent. She is a valuable partner in this effort and is providing us with the names of the worst offenders who have completely thumbed their nose at the court system and walked away without paying ANY fines.  These are the offenders we are now pursuing with arrest warrants in order to have any of their suspended sentences revoked due to their noncompliance.

The net fiscal year recovery of delinquent fines since we have instituted the program is as follows (this includes the locally collected “fee” for collections efforts which we keep rather than such fee going to Richmond):

2010: $363,182.75
2011: $377,152.92
2012: $423,095.43
2013: $448,012.12

Thank you for your continuing support!

Sincerely,
James P. Fisher
Commonwealth’s Attorney – Fauquier County

http://jamesfisher.org/arrest-warrants-issued-dwi-delinquent-fine-deadbeats/

Junk Science, Faulty Breath Test Devices and Product Liability

With the most recent evolution in tort law, strict liability has been transformed and the very nature in questioning company’s negligence has been eliminated. The grounds for a strict liability class action suit only requires a plaintiff to demonstrate that a product caused an injury because it was defective; the reason for the defect is irrelevant. The product itself, not the defendant’s use, is under investigation.

A couple of guys from New Jersey named Johnson and Aguaiza were arrested for DUI and after pleading guilty in their criminal cases, those guys subsequently brought a product liability action against the company that made the breath-testing device used to establish their BACs as being in excess of .08%. The case is called Johnson and Aguaiza v. Draeger Safety Diagnostics, Inc., Civil Action No. 13-2439 (JLL) (D. N.J. July 19, 2013). The slip opinion is here. http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2013cv02439/288424/24/0.pdf

The plaintiffs claimed that “the Alcotest 7110 contains latent design defects in that it is a piece of respiratory equipment that is not standardized at frequent intervals and there is no provision for calibration of its pulmonary reporting apparatus.” Slip op. at 2. It is standard operating procedure for the defendant in a DUI criminal case to attack the calibration of the machine measuring the BAC, but this is the first time we have heard of that issue spilling over into a product liability case. Further, this was not just a run of the mill product liability case. The plaintiffs styled their complaint as a class action, with the class consisting of all persons arrested for a deuce in New Jersey who blew into the Alcotest 7110 and were subsequently convicted.

The plaintiffs alleged three claims: (1) negligence, (2) strict tort liability; and (3) common law fraud. The defendant moved to dismiss these causes of action. The court granted the defense motion. Let’s decant the court’s ruling, applying a version of FSTs.

Walk a Straight Line

Any claim in New Jersey for harm caused by a product is governed by New Jersey’s Product Liability Act (PLA). Under the PLA there are only three causes of action: (1) manufacturing defect; (2) failure to warn; and (3) design defect. Applying straightforward reasoning, the court held that the plaintiffs’ claim for common law negligence did not fit into any of those PLA categories. The plaintiffs weaved around that little problem by arguing that the PLA did not apply to their case, citing cases involving defendants that either had designed but not sold the product or that had rendered a service without actually selling the product. But in this case it was clear that the defendant made and sold the product that the plaintiffs claimed had harmed them. Thus, the negligence claim was subsumed by the PLA, it did not work, and it was poured down the drain with prejudice.

Speak without Slurring

The plaintiffs conceded that their claim for strict liability was embraced by the PLA. Whether or not the plaintiffs conceded it, the court applied TwIqbal, which requires plaintiffs to set forth facts establishing a plausible theory of liability. Here, the plaintiffs’ theory was that the defective Alcotest forced them to face “prosecution with tainted evidence.” Slip op. at 10. Let’s pretend for the moment that such a theory could conceivably hold water. New Jersey law requires the plaintiff to show “the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiffs’ harm.” Slip op. at 9. The plaintiffs did not allege such a reasonable alternative design. Perhaps more fundamentally, the harm alleged by the plaintiffs was unprecedented and just plain weird. The PLA defines harm to require some sort of physical injury. No such physical injury was plausibly alleged.

Close Your Eyes and Touch Your Nose

The plaintiffs’ fraud claim focused on representations made by one of the defendant’s corporate officers during testimony to governmental bodies at public hearings about the functioning of the Alcotest 7110. But for a statement to be fraudulent it is not enough that it simply turned out not to be true (even assuming that was the case). Rather, the speaker must have known at the time that the statement was false. Here, the court saw no evidence of such knowledge. Under Fed. R. Civ. P 9(b)’s particularity requirement for fraud allegations, it is not enough for the plaintiff to offer the bare allegation that the speaker “must have known” of the fraud given his or her position in the company. Moreover, there was no allegation that the plaintiffs relied on the statements by the corporate officer. And how could they make such an allegation? “I felt it safe to drive the highways and byways of New Jersey with impunity because I depended on the calibrations behind the BAC measurements”? Finally – and this is the part that comes closest to our more typical topics – the court ruled that “to the extent Plaintiffs’ common law fraud is based upon statements allegedly made by Defendant Draeger to the FDA, such claim would be preempted by federal law.” Slip op. at 14, citing Buckman. Aha! Now you cannot go accusing this post of taking you on a frolic and detour. This heady little DUI/product liability case turns out to be a mainstream application of Buckman preemption.

I know you’re not exactly touching, or holding, your nose over this opinion. In fact, it has a well-balanced, complex bouquet. But the one disappointment is that the court gave the plaintiffs leave to amend the complaint and replead the strict liability and fraud claims. To your taste buds, those claims are stale beer. The plaintiffs did, after all, plead guilty. I do not know if the plaintiffs had to render some sort of allocution during their guilty pleas, stating under oath the facts showing their actual guilt, but even without such allocution it seems that a criminal conviction should have preclusive effect. The claims are all wet. Indeed, the defendant had a pretty good argument in favor of sanctions against the plaintiffs for pursuing causes of action lacking any basis in current New Jersey law. The court, probably acting under the influence of generosity, denied that request for sanctions. But to give leave to amend takes generosity to a fault. Then, there’s also that fear that the court is being an enabler. Still, the court seemed to indicate skepticism that any such amendment could rescue the plaintiffs’ case, underlining that this was the plaintiffs’ “final” opportunity, that the defendant’s request for sanctions was denied without prejudice, and explicitly warning the plaintiffs that a prayer for punitive damages was almost certainly a loser because any claim that the defendant made misrepresentations to an agency (the exception to the rule against punitive damages in PLA cases) would be preempted by Buckman. Slip op. at 16 & n. 8. This DUI product liability case really does turn our to be a deuce by applying Buckman twice.

That sort of reasoning calls for a (sober) celebration.
July 2013

Click to access 0.pdf

October 2013

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Is the Intoxilyzer 8000 the next class action suit waiting to be filed?
The Truth, The ‘Hole’ Truth and Nothing but The Truth, blows a ‘Hole’ in CMI, Inc.’s Credibility http://wp.me/p1pJW7-36

THE MADDNESS OF MADD – V.I.P. Panels & Alcohol and Drug Assessment Counseling

THE MADDNESS OF MADD – Victim Impact Panels (V.I.P.) & Alcohol and Drug Assessment Counseling
No one really wants to stop DUI’s, not you or anyone else? Why? There’s too much money in the ‘business’ of DUI….”

MADD states that it wants to ‘Eliminate Drunk Driving’—- Really?  MADD was founded in 1980 and 33 years later we still have DUI’s. Does it really look like MADD wants to ‘Eliminate Drunk Driving’ when the Federal Government gives them $54,000,000.00 a year…. This is the MADDness of MADD and the LIE that is DUI… !!!

If MADD averaged $50,000,000.00 in federal grants + another $30,000,000.00 from the MADD V.I.P fees a years x 34 years they raised $2,625,000,000.00 BILLION dollars in 34 years.  How did we let the MADDness of MADD erode our protections in the  4th, 5th and 5th Amendments guaranteed by the Constitution yet we still have DUI’s 34 yrs. later?

Federal Spending Bill Boosts MADD’s Campaign to Eliminate Drunk Driving
By MADD | March 21, 2013|
MADD is pleased to announce that Congress has provided full federal funding for the three components of MADD’s Campaign. We couldn’t have done this without the voices of MADD supporters across the country who have been emailing and calling Congress ever since our National Conference Lobby Day in September. Your voices have paid off and will lead to a nation without drunk driving.
The spending bill allows over $50 million for aspects of the Campaign, including:
• $29 million for three annual high visibility “crackdowns.” Two of these crackdowns are the twice yearly Drive Sober or Get Pulled Over campaigns, which are key to supporting law enforcement efforts to keep drunk drivers off the road. The other is for Click It or Ticket, the seat belt campaign, which also helps reduce drunk driving fatalities, since a seat belt is the best defense against a drunk driver.
• $20 million dollars for states that pass an all-offender ignition interlock law. Right now, 17 states require interlocks for all offenders. These lifesaving devices reduce drunk driving by two-thirds while on offenders’ vehicles. This funding, through incentive grants, will encourage more states to save lives with interlocks.
• $5 million dollars for advanced anti-drunk driving technology. The advanced technology project, known as the Driver Alcohol Detection System for Safety, or DADSS, is part of a cooperative agreement between federal government and the world’s leading automotive companies. This is the technology that will eventually eliminate drunk driving by making cars that will fail to operate if the driver is impaired. This funding will aid this vital research.
Grants will also be available to states to address other key areas of highway safety, including distracted driving, occupant protection, motorcycle safety, traffic records and improving graduated driver licensing laws.

– See more at: http://www.madd.org/blog/2013/march/federal-spending-bill-boosts-CEDD.html#sthash.uXo4h9fz.dpuf

Think about this, for the last 20 years USA has averaged 1+ million DUI’s a year and every state has a MADD Victim Impact Panel (V.I.P – ever wonder why MADD chose that name? It’s all about the MONEY and people arrested for DUI are VERY IMPORTANT PEOPLE because MADD’s very survival depends upon the ‘fees’ collected for their ‘state mandated’ Victim Impact Panel.

Most state charge $50.00 but Florida only charges $20.000. Do the Math, over 1,000,000 DUI arrests each year and the fees are between $30,000,000.00 – $50,000,000.00 dollars in MADD’s coffers to keep on perpetuating the ‘LIE that is DUI’ to substantiate their corrupt existence. Politicians and County Judges are leery of MADD’s lobbying power because their job and next election depends on MADD liking them and MADD’s perception that both the judges and legislators are ‘Tough on DUI offenders’. County judges have MADD court watchers that monitor their rulings on DUI cases and the legislators voting records are monitored by the MADD lobbyist. MADD money might not buy judges or politicians but, MADD money influences the outcomes of incumbent politicians and sitting judges.

How is passing laws that require a citizen to make a ‘donation’ to a ‘supposedly’ Non-Profit’ organization not a conflict of interest for the politicians who are lobbied by MADD to pass ‘tougher’ laws on DUI

Alcohol and Drug Assessment Counseling

 

Is The Ohio Intoxilyzer 8000 On It’s Last Breath?

Is The Ohio Intoxilyzer 8000 On It’s Last Breath?

Death Blow? Ruling rejects Ohio’s newest Breath Testing Device – Again.

Here’s the opinion…lancaster_marietta_decision_barring_intox_8000

Breaking DUI Gladiator News in Ohio on the Intoxilyzer 8000 ~

DUI Gladiators Tim Huey, Esq. and Shawn Dominy, Esq. dealt another HUGE blow – perhaps the death blow- to Ohio’s Intoxilyzer 8000 program. In a case where they put their experts… up against the State’s “A Team” experts and the court shifted the burden to the defense to prove the I-8000 results were unreliable the court’s verdict is in – and the Intoxilyzer 8000 results are out.

The court stated:

“Defendant’s have met their burden… the results are not scientifically reliable … serious problems with the design…the court as gate-keeper against unscientific must prohibit them from being introduced as evidence in this case.” The judge also rejected the “traditional view” of State v Vega a new, more limited, Tim and Shawn Dominy lead the charge in this case as a part of the OACDL DUI Committee’s effort to challenge bad breath testing science.

Verdict – the defense proved the Intoxilyzer 8000 results “are not scientifically reliable” a judge recently ruled in State of Ohio v Chelsea Lancaster.[i]

Defense lawyers believe this will be a landmark case, setting a precedent that will be followed statewide in challenges to Ohio DUI chemical tests now and in the future, in part because it advances a new interpretation of State v Vega,[ii] an old case prosecutors have relied heavily on in trying to stymie such challenges.

In a lengthy, multi-day hearing, held over several months and featuring six (6) experts, the Intoxilyzer 8000 breath testing device itself was put on trial. In support of the Intoxilyzer 8000, the State of Ohio put on its top experts including: the head engineer for the breath machine manufacturer, a highly respected toxicologist and the head of the Ohio alcohol testing program. And yet, in a recently released ruling, the Intoxilyzer 8000 was the big loser.

The Intoxilyzer 8000 results “are not scientifically reliable,”[iii] ruled Judge Teresa Liston who heard several cases, combined for purposes of challenging the device, at the request of Marietta Municipal Court Judge Janet Dyar Welch. Lawyers believe the decision will carry a lot of weight because Judge Liston – assigned to hear only these cases – was able to devote extensive time to the case and allowed each side an ample opportunity to present its case. Additionally, Liston, a retired judge currently on the faculty of the National and Ohio Judicial Colleges and Capital University Law School, is well known and highly respected by her colleagues throughout the state.[iv]

The Defense Attacks the I-8000

The defense lawyers leading the attack, OACDL Immediate Past President, D. Timothy “Tim” Huey and OACDL member Shawn Dominy, were not surprised; they had experts of their own. The defense presented the testimony of three of the top experts in the nation: Dr. Alfred Staubus, a forensic toxicologist who owns and does experiments with Intoxilyzer 8000 devices; Professor Thomas Workman, a former Electrical Engineer and computer specialist who teaches law school classes on science and the law; and Dr. Michael Hlastala, a world renowned pulmonary expert who testified about inaccurate assumptions the Intoxilyzer 8000 devices make about alcohol in the lungs and breath.[v]

Documented Problems with the Machine

The defense experts documented numerous problems with the results from the Intoxilyzer 8000 devices and may have had a leg up as Huey has successfully cross-examined each of the state’s experts before. This case involved many witnesses and dozens of notebooks full of exhibits. Huey and Dominy took turns taking on the state’s experts and in presenting the defense experts. Dominy said the defense documented many problems with the machine and raised questions about the manner in which the manufacturer and the state of Ohio were trying to hide the problems. He said the evidence established that there were, among other things, problems with radio frequency interference (RFI) affecting the tests; a design flaw that invites officer manipulation and/or defeats the purpose of requiring two tests to agree with a set range and; the devices inability to adequately ensure that alcohol from the mouth, esophagus and other non-lung sources or other substances in the blood / breath won’t be read as alcohol. These were deficiencies [vi] cited by the court in barring the results.

Huey and Dominy both felt that that the manufacturer was hiding even more significant problems. The evidence showed that the software that controls the devices can be changed remotely by the manufacturer – and has been several times since the devices were approve for use in Ohio. The manufacturer has refused to provide the “source code” to Professor Workman and the State has refused to allow him access to the database Ohio maintains, which contains information not disclosed to lawyers for Ohioans accused by the machines of being guilty of DUI.

Biggest Blow to the Intoxilyzer 8000 Yet

Huey says this is the biggest victory yet and believes this case is bound for the Ohio Supreme Court because even though the state was relieved of the burden of showing that the devices are reliable the defense still prevailed.

In the previous successful I-8000 “reliability” challenges trial courts have put the burden on the prosecution to show the device is reliable. In those cases the prosecution generally failed to meet this burden and often refused to try; opting, instead, to appeal the trial court rulings. Generally, the two Ohio appellate panels that have heard these appeals have tended to hold that there is a “presumption of reliability” when the state chooses a breath test device.[vii] However, these appellate decisions have ruled that trial courts can still act as “scientific gatekeepers” but held the burden should be placed on the defense to establish that a particular device is unreliable.

Presumption of Reliability Blown Away

In Lancaster, mindful of the appellate cases, Judge Liston did, indeed, put the burden on the defense to show the results produced by the Intoxilyzer 8000 devices used on Ms. Lancaster and the other defendants were not reliable. Huey and Dominy, members of the Ohio Association of Criminal Defense Lawyers (OACDL) DUI Committee, had been looking forward to being involved in another case challenging the Intoxilyzer 8000 [viii] and accepted this challenge. “We knew it would be a lot of work but we thought we could meet the burden the court placed on the defense” Huey said. Ultimately Huey and Dominy were invited to join attorneys Ray Smith and Shawna Landaker, of the Ohio Public Defenders Office, in defending Ms. Lancaster and the other defendants against the results produced by the I-8000 machines. Marietta attorney Dennis Sipe, who was counsel in several other joined cases, rounded out the defense team.

Ultimately Huey, Dominy, Smith, Landaker and Sipe prevailed and, indeed, made history. The ruling in State v Lancaster represents the first time an Ohio court has held that the defense has proven that a breath testing device is unreliable. The defense lawyers all expect the prosecution to appeal the ruling.

Bound for the Supreme Court?

Even when, as in the appellate cases discussed above, courts have shifted burden of establishing lack of reliability onto the defense, prosecutors have still complained; they assert that under, State v Vega,[ix] trial courts cannot act as “gatekeepers” in DUI cases. Indeed, in written arguments in Lancaster, the prosecution asserted that allowing defendants to attack the reliability to the I-8000 would bring Ohio DUI prosecutions “to a screeching halt” resulting in dismissals of what would have been “slam dunk” convictions.[x]

A good portion of Judge Liston’s opinion deals with this issue and concludes that the “traditional view” of Vega is at odds with the actual decision. For this reason, Liston says courts have had trouble applying Vega logically and consistently and have had similar difficulty squaring it with cases rendered by the Ohio and US Supreme Courts, such as the landmark case of Daubert v Merrill Dow, which hold that courts must act as “gatekeepers.” Ultimately, in Lancaster, Judge Liston adopted a much more limited interpretation of Vega, which, not coincidentally, is very much in line with the recent holdings in the Intoxilyzer 8000 cases decided by the Ohio Eleventh Appellate District -where almost all the I-8000 appellate litigation has occurred.

Judge Liston pointedly observed that “the essential role of the judiciary is not to facilitate ‘slam dunk’ prosecutions” but is to “see that substantial justice is done.” [xi] It remains to be seen if the higher courts will side lean toward “substantial justice” or “slam dunk convictions.” Ohio citizens who could find themselves accused and falsely convicted by unreliable machines must hope that substantial justice prevails.

——————————————————————————–

[i] State v Lancaster Marietta Ohio Municipal Court Case No. 12 TRC 1615 and cases combined therewith decision filed August 14, 2013.

[ii] State v Vega, 12 Ohio St. 3d 185, 465 N.E.2d 1303 (1984).

[iii] See Lancaster decision page 19.

[iv] See Judge Liston’s listing at http://www.justiceinstitute.net/who_we_are.html

[v] See decision for further discussion of the experts and their testimony.

[vi] See Lancaster decision pages 15-19.

[vii] Ohio appellate courts in the Fourth and Eleventh Districts are the only appellate courts to have addressed challenges to the scientific reliability of these machines.

[viii] The OACDL DUI Committee, led by Huey and fellow member Jon Saia had been involved in an earlier Intoxilyzer 8000 challenge that made headlines throughout the state and led to many agencies discontinuing the use of the Intoxilyzer 8000. See media re State v Gerome, (Athens Municipal Court case No. 2011TRC01909, i.e. http://www.dispatch.com/content/stories/local/2011/07/01/new-breath-tester-under-siege.html

[ix] State v Vega, 12 Ohio St. 3d 185, 465 N.E.2d 1303 (1984).

[x] See Lancaster decision page 19.

[xi] See Lancaster decision page 13.

Here’s the opinion…

lancaster_marietta_decision_barring_intox_8000

JURY NULLIFICATION AND BAD DUI LAW

Imagine that you’ve had to much to drink, you know you’ve had to much to drive, you don’t want to drive and try to do the right thing and just get ‘in the back seat of your car’ to sleep it off.  You think you are doing the right thing but, in the state of Florida you still can be charged with DUI because the keys are on your person, or in your purse and you are in “actual physical control” of a motor vehicle.

This means is that in Florida, and many other states, you can be arrested for driving under the influence even though you aren’t driving. The definition of actual physical control differs by state but the legal analysis centers on whether or not you have the ability to operate the vehicle.  This is an absolutely insane law.

Q: How do we stop the MADDness of MADD?
A: JURY NULLIFICATION.

There are four words the state never wants to hear from a jury, ‘Not Guilty’ and ‘Jury Nullification’.  I don’t know of one judge that will let a defense attorney mention the option of ‘Jury Nullification’ to a jury. During a pre-trial Motion To Suppress, where the judge acted as another arm of the state and denied the motion that was legally and factually sufficient to grant the motion, the defense attorney was furious and  blurted out that he would just mention jury nullification in his opening. The judge quickly warned counsel that he was not allowed to even hint and the idea of jury nullification and if he did he would hold the attorney in contempt.  This is standard operating procedures for the court.  Why?

“Judges have devolved. First, they were fierce protectors of natural and constitutional rights, informing juries of their full powers and duties. Then they diminished themselves and the law by neglecting to fully inform juries …a crime of omission. Finally, they have become co-conspirators, wrongfully informing juries they may ONLY consider the facts and NOT the law…a crime of commission. Attorneys must unsheathe the most potent weapon in their defense arsenal and fight to advise the jury of their right to consider ‘JURY NULLIFICATION’.

JURY NULLIFICATION HAS LONG HISTORY OF RIGHTING WRONG LAWS

Our Founding Fathers, in all their wisdom, gave us a Constitution with layers of safeguards, so that if we erred, we could correct the error, peaceably – without a shot being fired.

One of these very important layers is Jury Nullification. John Adams and Thomas Jefferson were very strong advocates of Jury Nullification.

They stated:

“It is not only [the juror’s] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (John Adams, America’s second President; 1771)

“It would be an absurdity for jurors to be required to accept the judge’s view of the law, against their own opinion, judgment, and conscience.” (John Adams)

“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.” (Thomas Jefferson, in a letter to Thomas Paine; 1789)

“The juries [are] our judges of all fact, and of law when they choose it.” (Thomas Jefferson to Samuel Kercheval; 1816. ME 15:35)

Even the First Chief Justice of the U.S. John Jay, in 1789, chimed in on this issue with, “The jury has the right to judge both the law as well as the fact in controversy.”

Lastly, and most succinctly, Alexander Hamilton, in 1804, said that, “Jurors should acquit, even against the judge’s instruction… if exercising their judgment with discretion and honesty, they have a clear conviction the charge of the court is wrong.”

“Freedom of movement is the very essence of our free society – Once the right to travel is curtailed, all other rights suffer.”
~ William O. Douglas,
Supreme Court Justice 1939 – 1975

“If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant’s natural God-given unalienable or Constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.” (Emphasis add)
~ (U.S. Chief Justice Harlan F. Stone, 1941-1946)

Justice will not come to reign unless those who care for its coming are prepared to insist upon its value and have the courage to speak out against what they know to be wrong. Let it not be said that I did not speak out against tyranny.”
~ Carl Watner

The government has no capacity to admit its laws are wrong. By its very nature, government must try enforce its laws – good or bad. It is for these two reasons that we have juries to protect our freedoms.

Since the power of the jury is used to decide a guilty or NOT GUILTY verdict and that power has helped us protect so many of our cherished freedoms, why wouldn’t the government would want the true role and purpose of the jury taught to every child in every school?

We must start teaching our grade school children, young adults in high school and college about the power to control bad law through Jury Nullification.

Doc Tomkiel ~ the ‘Whistle Blower’ on the problems with the DHSMV and FDLE/ATP

When the state arrests and charges someone with a DUI, that person faces two legal challenges, one civil administrative and one criminal.  On the criminal side everyone, the state attorney, your defense counsel and the judge ‘all’ have Juris Doctor (JD) degrees, while on the Administrative side the only qualification for a Hearing Officer is a ‘High School’ degree.  This is absolutely ridiculous if you think about it.  The Hearing Officers have to listen to and ‘comprehend’ complex legal arguments, from ‘skilled attorneys’ and then try to decide if or how the case-law argued applies to the case at hand.  Allowing a Hearing Officer with no legal training or background to make decisions on whether the license suspension is upheld or reinstated creates due process violation case after case that results in a financial injustice because most people can’t afford to appeal. Even if they did appeal, their suspension would expire before the court rules on the appeal.  Who wins?  Not the defendant, the courts get paid the appeal filing fee, the DHSMV gets the license reinstatement fees paid and the insurance company gets a rate hike.  

Here’s a perfect example of what I’m taking about.  This is a case that I was involved in where the client attempted several times to provide ‘two’ sufficient breath samples (one sufficient, one Volume Not Met) as required but, due to a medical condition she could not complete the testing process after several tries because she could not breath.  The client begged the Breath Test Operator (BTO)  to let her use her asthma inhaler but, the BTO refused to let her use the inhaler and try again.  Fortunately for the client there was video of the breath test which was extremely disturbing as the client was suffering from a asthma attack and was struggling to provide both breath samples.  After the BTO told her that she was deliberately attempting to manipulate the testing process the client again stated that she was trying and that if he would let her use her inhaler, she would be able to take a deeper breath and give him the samples.  What happened? The BTO turned deaf due to his bias and sustained her refusal. Fortunately, the client had the means to pay her Attorney to Appeal the Hearing Officer’s biased ruling.

No wonder so many people think the DMV administrative hearings are a JOKE.  No only is the Administrative/Civil side of a DUI a JOKE, but when someone on the ‘inside’ finally steps forward and tells it like it is they are threatened by their superiors with termination.  How can this happen? Let’s look at the source of the problem at the DHSMV, the power brokers and a brave Hearing Officer who blew the whistle on Hearing Officers violating citizens Due Process Rights in Florida.

It started with a former Department of Highway Safety and Motor Vehicles (DHSMV) Administrative Hearing Officer named Doc Tomkiel who stood his ground and would not stand silent to the misconduct and corruption he found in within the Florida Department of Law Enforcement Alcohol Testing Program and the DHSMV which were a direct threat to public interest in safety violations and a violation of due process for the citizens of Florida.

1st Document:

The document below is a perfect example of what’s wrong with the Civil side of a DUI arrest.  Check out this letter of recommendation from Debra T. Lockett, a Field Supervisor for the DHSMV Bureau of Administrative Reviews where she comments about former DHSMV Hearing Officer Mr. Tomkiel’s ‘professionalism towards upholding the ‘due process rights’ of ‘our customers’. What?  That’s right, Ms. Lockett refers to the defendant’s as ‘customers’ of the DHSMV.  (2nd paragraph, 2nd sentence) See More

2nd Document

MEMORANDUM

Date:                April 9, 2007

To:                   FL CIG Melinda Miguel

From:               Doc Tomkiel ( FL DHSMV Complaint dated 09/11/06 )

Subject:            Re:  Florida Statute 112.3189(3)(c)

Since you have classified our public corruption complaints as “Whistle-blower” complaints, we understand that we have a legal burden to meet in order to prove that our allegations meet a certain statutory mandate in order for us to receive an FDLE criminal investigation.

We understand that you will make a determination of whether the information we have disclosed demonstrates “reasonable cause” to suspect that a state employee has violated any federal, state, or local law, rule, or regulation, thereby creating a substantial and specific danger to the public’s welfare, or has committed an act of gross mismanagement or malfeasance.

We believe it is very important for us to come to a mutual understanding with you as to what the required standard of proof represents regarding this investigation since you folks have never investigated a quasi-judicial public corruption complaint.  The standard of proof is the level of proof required of us to convince the finder of fact ( you ) that a given proposition is true.

Reasonable cause

A fact or circumstance that justifies a reasonable suspicion.  To have knowledge of a fact which, although not amounting to direct knowledge, would cause a reasonable person to come to the same conclusion.

Probable cause

A reasonable belief that a person has committed a crime.

In a civil case, the plaintiff must convince the judge or jury “by a preponderance of the evidence” that the plaintiff’s version is true – that is, a majority or over 50% of the believable evidence is in the plaintiff’s favor.

In a criminal case, probable cause exists when the facts and circumstances are sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime.

Beyond a reasonable doubt

This is the standard required by the prosecution in most criminal cases within an adversarial system. This means that the proposition must be proven to the extent that there is no “reasonable doubt” in the mind of a reasonable person.

In a criminal case, because a person’s liberty is at stake, the government has a harder job, and must convince the judge or jury beyond a reasonable doubt that the defendant is guilty.

Remember, our burden of proof is the lowest – reasonable cause to suspect, not probable cause to believe and not proof beyond a reasonable doubt.  I’m going to cite three examples applying these different burdens of proof to a Whistle-blower complaint so that there should be no misunderstanding between us as to what we need to prove for the record:

1.  Assume you have one Hearing Officer make a Whistle-blower complaint to the FL CIG who alleges that certain FL DHSMV officials have directed him to disregard precedential case-law or exceed the limits of his lawful authority – ( the main premise of our complaints ).

The evidence:

• One sworn affidavit from a Hearing Officer attesting to being directed to disregard a precedential defense argument or exceed the limits of his authority.
• One letter from a Hearing Officer to the FL DHSMV where he objects to being directed to violate a driver’s due process/civil rights.
• One sworn affidavit from a Defense Attorney attesting that the FL DHSMV has violated his client’s due process rights. ( No Writs or Court Orders ).

Based on this fact scenario, the FL CIG would have reasonable cause to suspect that certain FL DHSMV officials have violated both state and federal laws, along with FL DHSMV rules and regulations, thereby creating a substantial and specific danger to the public’s welfare by intentionally depriving the public from receiving due process of law and justice at the administrative level of government, which can be both a civil and a criminal matter.  In addition, both gross mismanagement and malfeasance would apply as well.

Remember, under this standard, we do not have to prove the due process violations.  The evidence only has to establish reasonable cause to suspect – evidence that would cause a reasonable person to come to the same conclusion.

2.  Assume you have two Hearing Officers who allege that certain FL DHSMV officials have directed them to disregard precedential case law or exceed the limits of their lawful authority.

The evidence:

• Two sworn affidavits from two Hearing Officers attesting to being directed to disregard a precedential defense argument or exceed the limits of their authority.
• Two letters from two Hearing Officers to the FL DHSMV where they objected to being directed to violating drivers’ due process/civil rights.
• The sworn testimony or affidavits from two Attorneys attesting that the FL DHSMV has violated their clients’ due process rights.

Based on this fact scenario, the FL CIG would have probable cause to believe that certain FL DHSMV officials have violated both state and federal laws, along with FL DHSMV rules and regulations, thereby creating a substantial and specific danger to the public’s welfare by intentionally depriving the public from receiving due process of law and justice at the administrative level of government, which can be both a civil and a criminal matter.  In addition, both gross mismanagement and malfeasance would apply as well.

Remember, under this standard, we do not have to prove the due process violations.  The evidence establishes probable cause by a preponderance of the evidence – reasonable belief that the Hearing Officers’ version of the facts is true.

This scenario exceeds the statutory mandate of “reasonable cause” and, by law, the complaint would have to be referred to FDLE for a criminal investigation.

3.  Now, let’s assume you have six Hearing Officers who allege that certain FL DHSMV officials have directed them to disregard precedential case law and exceed the limits of their lawful authority.  In addition, let’s assume that the Hearing Officers are constantly directed to violate the drivers’ due process rights during the administration of the hearings that causes them to violate their oath of office.

The evidence:

• Six sworn affidavits from six Hearing Officers attesting to being routinely directed to disregard precedential defense arguments and to exceed the limits of their lawful authority.
• Dozens of letters from a number of Hearing Officers to the FL DHSMV where they objected to being directed to violating the drivers’ due process/civil rights.
• The sworn testimony and affidavits of a dozen Attorneys attesting that the FL DHSMV has violated their clients’ due process rights.
• Many writs have been filed in the Florida Appellate Courts regarding these ongoing due process violations – and many winning court decisions have been rendered to the drivers.  There is no better evidence to prove beyond a reasonable doubt that these public officials are guilty of violating the due process/civil rights of the Florida motoring public.

In addition:

• Dozens of witnesses, including two former FL DHSMV attorneys, have attested to the ongoing due process/civil rights violations.
• Judges have awarded damages against the FL DHSMV attorneys because the public is being prosecuted in “bad faith.”
• There are thousands of court decisions rendered against the FL DHSMV because of the ongoing due process/civil rights violations.
• Judges have specifically told the FL DHSMV officials in their court orders to stop violating the public’s due process rights.  ( Judge Gerald, Judge Nachman, etc. )
• Several “Whistle-blower” complaints have been filed for reporting these due process violations – and FCHR ruled in favor of the Hearing Officers.  Several lawsuits have been settled out of court, as well, also in favor of the Hearing Officers.
• FL DHSMV/BAR Bureau Chief lied in a judicial proceeding – refusing to acknowledge an administrative review “practice” that controls an unethical enforcement agenda.
• Hearing Officers have been told to hide public documents in their cars to avoid an attorney’s public records request.  A Hearing Supervisor has been told to hide an FDLE report to avoid invalidating thousands of administrative suspensions.
• Hearing Officers can’t get their legal questions answered – no competent legal advice.  Non-licensed administrators rendering legal advice with no legal research.
• A number of Hearing Officers have resigned because they were fed up with the harassment.  They objected to violating the public’s due process/civil rights.
• A State class action lawsuit was filed on 03/26/07 ( FL 2^nd Judicial Circuit Case # 2007 CA 0864 ) by three law firms on behalf of thousands of Interlock victims who suffered the loss of due process because these corrupt FL DHSMV officials conspired to exceed the limits of their authority.  Four DCA’s have ruled against the FL DHSMV.  The damage award should be in the mega-million dollar range.

Based on this fact scenario, the FL CIG has proof beyond a reasonable doubt that certain FL DHSMV officials have violated both state and federal laws, along with FL DHSMV rules and regulations, thereby creating a substantial and specific danger to the public’s welfare by intentionally depriving the public from receiving due process of law and justice at the administrative level of government, which can be both a civil and a criminal matter.  In addition, both gross mismanagement and malfeasance would apply as well.

This last scenario represents only a fraction of the evidence that we have furnished to you.  It definitely shows that we have exceeded the statutory mandate of “reasonable cause” and, by law, the complaint must be referred to FDLE for a criminal investigation.

The FL DHSMV’s quasi-judicial system of administrative justice is corrupt!  We estimate that over the past five years that over 50,000 Florida motorists have been deprived from receiving due process of law at the administrative level of government.

This is a matter of great public importance.  We need a criminal investigation as soon as possible.

Respectfully,

Doc Tomkiel

3rd  Document:

POB 15701

Clearwater, FL 33766

TX: (727) 902-7689

October 31, 2011 Certified USPS # 70100780000072802170

Governor Scott and the FL Cabinet:

Re: Formal Complaint against FDLE Officials – Request for a Special Prosecutor

Please consider this to be a formal complaint against FDLE Director Bailey and FDLE ATP Manager Barfield, along with any and all other FDLE officials who were involved with the reported cover-up of Intoxilyzer operational problems and efforts to mislead the public regarding expired BTO licenses, in addition to other related FDLE ATP issues. There are many reasons why the FDLE Alcohol Testing Program staff should be investigated by an independent special prosecutor. Taken from a Florida attorney’s website:

“The Florida Department of Law Enforcement has inspectors that are doing inspections improperly to mislead everyone including judges, prosecutors and criminal defense attorneys. Even worse, the FDLE employees appear to be teaching the inspectors at each law enforcement agency how to unplug the machines and use cell phones to hide the real reasons why the machine is failing. Those facts cannot be contradicted by FDLE because their employees have been caught red-handed. So how can we trust anything about the program that operates under complete secrecy?”

http://tampaduiattorney.wordpress.com/2011/07/30/floridas-intoxilyzer-8000-why-fdle-departmental-inspector-maggie-geddings-used-cell-phones-to-manipulate-the-inspection-reports

http://tampaduiattorney.wordpress.com

Mr. Bailey recently told the media that he didn’t think FDLE deserved the criticism it had been receiving in the media where many public and private sources were questioning FDLE’s integrity. I couldn’t disagree more. If FDLE disregarded all political concerns and provided Floridians with a professional, impartial level of investigative services, I would be one of their biggest advocates. There are many good people who work at FDLE. Until we get an FDLE director who places the rule of law above partisan politics, FDLE will continue to be a statewide embarrassment. All the good that FDLE does is diminished when the public learns that thousands of Floridians have reportedly been wrongly prosecuted because of intentional FDLE misconduct.

Governor Scott – the public wants to know why neither Mr. Bailey nor you have taken definitive action to address the problems that have been reported by many in the defense community over the years with the FDLE Alcohol Testing Program staff – serious problems that are finally being exposed by the media. It appears in your zeal to create jobs you have placed little emphasis on other key responsibilities of your office. These agency officials answer to you. We have brought many founded complaints to your attention and you have been completely silent since you took office. Your staff doesn’t understand the meaning of the phrase ‘quality customer services’ because they refuse to communicate.

Back in 1997 when I started working as a FL DHSMV/BAR Hearing Officer, I had to deal with various Intoxilyzer instrumentation and licensing problems. I can’t tell you how many driver license suspensions I had to invalidate because of problems caused by incompetent or unethical FDLE officials. To see the same problems happening again and again – it can only mean one thing. Since Mr. Bailey has been made aware of many FDLE ATP problems in the past, he and his staff obviously condone this kind of unethical misconduct and, as a result, they should be held accountable.

Do you think it is proper for a law enforcement agency to knowingly hide the results of malfunctioning Intoxilyzer instruments and just watch as thousands of Floridians are wrongfully prosecuted? FDLE’s lack of integrity represents the same problem we ran into while trying to work with the FL DHSMV officials who routinely directed us to disregard legal precedent and exceed the limits of our lawful authority when we rendered legal decisions to the public.

On many occasions, the BAR Hearing Officers were told not to issue subpoenas to FDLE Inspectors even though procedural due process required it. I refused to comply with those directives and was subjected to much harassment as a result. When they made it impossible for me to render well-researched legal decisions to the public, I brought a lawsuit against the FL DHSMV. Instead of contesting the allegations of official misconduct I had raised in court, the evidence I presented negated any defense for the offending FL DHSMV officials and the lawsuit was settled in my favor.

This isn’t the first time FDLE has been accused of hiding information from the public. And, if these news reports are accurate, the breath test operator licensing concerns constitute even more official misconduct. Florida judges are reportedly dismissing thousands of DUI cases because of FDLE misconduct, yet we haven’t heard a word from Mr. Bailey – or from you or from the FL Cabinet.

FDLE is intentionally violating the due process rights of the Florida motoring public – once again. It appears Mr. Bailey’s lack of leadership has resulted in the violation of thousands of Floridians’ civil rights. The question I pose to you and to the FL Cabinet members is this: Why haven’t you moved to protect the public and hold Mr. Bailey and the involved FDLE officials accountable?

We have tried to work with the FDLE IG in the past and found that he only covers for the agency. If you reviewed the evidence we gave to him, you would understand our position. Telling citizens there is insufficient evidence to conduct an investigation when that simply is not true is more than unethical – it’s obstruction.

Please consider this to be a formal complaint. There is a ton of evidence of FDLE ATP misconduct to be recovered around the state. I know hundreds of FACDL attorneys who will be happy to assist in an independent investigation regarding the FDLE ATP officials, especially with regard to Ms. Barfield.

Over the past nine months, we’ve seen your staff refuse to investigate several complaints which have been filed against various public officials. We’ve been trying to get complaints investigated involving the FL DHSMV, FDLE and CIG Miguel since late 2006.

In order to avoid the appearance of a conflict of interest, I am asking you to appoint an independent special prosecutor due to the serious of the allegations. We’ve seen FDLE cover-up acts of official misconduct in the past. And yes, we have the evidence to support our allegations. I am one of many concerned Floridians around this state who believes that it is time to hold FDLE accountable!

FDLE’s mission is too important and it needs to be regarded as a state law enforcement agency of unquestioned integrity. I can attest to the fact that the FDLE Alcohol Testing Program has not been acting with integrity dating back to 1997. I can’t tell you how many defense attorneys have told me over the years that Ms. Barfield has lied under oath. In light of the seriousness of the current FDLE integrity problems, I hope you’ll agree that major personnel changes are warranted.

We are asking you and the FL Cabinet to help us protect Floridians by restoring ‘integrity’ back into the FDLE ABT Program. The 19th Statewide Grand Jury reported last year that the Florida Inspector General system is broken. The Republican leadership blocked the IG Reform Bills from passing into law. We are also seeking your public support for these needed reforms.

If the FDLE director and his IG had done their jobs back in 2007 when we first brought clear and convincing evidence of FL DHSMV and CIG misconduct to their attention, we probably wouldn’t be having this integrity problem today. Please appoint an independent special prosecutor to investigate the many allegations that exist regarding the FDLE ATP.

Please confirm receipt of this communication.

Sincerely,

Doc Tomkiel (727) 902-7689

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The citizens of Florida should be thankful for people like Doc Tomkiel who aren’t afraid to speak out about the problems in the DMV. Justice won’t be served until the DMV cleans house of the cancers within  and quits referring to defendants as a “customers”

“To stand in silence when they should be protesting makes cowards out of men.” ~ Abraham Lincoln

“Justice will not be served until those who are unaffected are as outraged as those who are.” ~ Benjamin Franklin  

 

Is DUI ‘the weapon’ for Killing Constitutional Rights’?

FYI on DUI by DUI undo Consultants, LLC

Is DUI ‘the weapon’ for Killing Constitutional Rights’? ~

The latest attack on our right to travel is the Driver Alcohol Detection System for Safety, or DADSS.  Is this the ‘prefect prevention’ to stopping drunk driving, or just another bullet fired from the ‘Constitutional Rights Killer’ that erodes our right to travel unfettered?

The presumed right to travel, however, is firmly established in U.S. law and precedent. In U.S. v Guest, 383 U.S. 745 (1966), the Court noted, “It is a right that has been firmly established and repeatedly recognized.” In fact, in Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in a concurring opinion that “it is a right broadly assertable against private interference as well as governmental action. Like the right of association, … it is a virtually unconditional personal right, guaranteed by the Constitution to us all.” It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.

Even if we could make it impossible for people to drive drunk, should we? Or would doing so improperly deprive people of their freedom? This is yet another example of why the aggressive enforcement of DUI helps pave the way to restrict one’s movements, one’s right to travel unfettered or as I call it the MADDNess of MADD…!!!

This may sound like a fanciful concern, but it is an increasingly real one. The new federal transportation bill, for example, authorized funding for a program that seeks to prevent the crime of drunken driving not by raising public consciousness or issuing stiffer punishments — but by making the crime practically impossible to commit. The program, the Driver Alcohol Detection System for Safety, or DADSS, is developing in-vehicle technology that automatically checks a driver’s blood-alcohol level and, if that level is above the legal limit, prevents the car from starting.

Is the DADSS program that is motroing along NHSTA’s political toll road  for public safety just another attempt to chip away at our Constitutional Rights by controlling our freedom to make a decision? Isn’t ‘depriving people of the opportunity to commit an offense in the first place’ really just another muddy step on the Red, White and Blue colors of our Constitutional Rights…???

This is what I have been preaching about for the last 5 years, that the MADDness of MADD will slowly erode more and more of our Constitutional Rights. Need more proof of this transgression? The federal government’s Intelligent Transportation Systems program, is creating technology to share data among vehicles and road infrastructure like traffic lights. This system could make it impossible for a driver to speed or run a red light. Stop there?  No, that’s the MADDness of MADD, it’s a Constitutional Rights cancer that spreads into other areas of our life’s.

Need more proof?

Consider a more speculative scenario: Some pharmaceuticals show the promise of blunting the “high” of cocaine use or reducing antisocial thoughts of the sort that often lead to crime. Widespread dissemination of such drugs — say, putting them in the public water supply — could make some crimes impossible by eliminating a potential offender’s desire to commit them.

Such technologies force us to reconcile two important interests. On one hand is society’s desire for safety and security. On the other hand is the individual’s right to act freely. Conventional crime prevention balances these interests by allowing individuals the freedom to commit crime, but punishing them if they do.

The ‘perfect prevention’ of crime asks us to consider exactly how far individual freedom extends. Does freedom include a “right” to drive drunk, for instance? It is hard to imagine that it does. But what if the government were to add a drug to the water supply that suppressed antisocial urges and thereby reduced the murder rate? This would seem like an obvious violation of our freedom. We need a clear method of distinguishing such cases.

One thing to keep in mind the distinction between thoughts and actions. A traditional rule in criminal law holds that there can be no crime unless the defendant committed some act: mere thoughts, no matter how horrific, are not sufficient. Thoughts cannot be regulated; everyone has a right to think what they wish without government intrusion.

For most familiar crimes (murder, robbery, rape, arson), the law requires that the actor have some guilty state of mind (Mens rea), whether it is intent, recklessness or negligence. But there is a category of crimes that are forbidden regardless of the actor’s state of mind: so-called strict-liability offenses. One example is drunken driving.

But because the government must not intrude on people’s thoughts, ‘perfect prevention’ is a bad fit for most offenses. Perfect prevention of a crime like murder would require the ability to know what a person was thinking in order to determine whether he possessed the relevant culpable mental state. Even if this could be known, perhaps with the help of some sort of neurological scan, collecting such knowledge would violate an individual’s freedom of thought. Likewise, adding chemicals to the water supply in order to dampen antisocial urges would violate that freedom.

Perfect prevention is a politically attractive approach to crime prevention, but for strict-liability crimes is it permissible? It may be good policy but for most offenses, the threat to individual freedom is too great to justify this approach. This is not because people have a right to commit crimes; they do not. Rather, perfect prevention threatens our right to be free in our thoughts, even when those thoughts turn to crime.

This is the cancer caused by the MADDness of MADD, wage war on responsible social drinker by controlling their right to travel. This reminds me of a quote by US Supreme Court William O. Douglas regarding the basic necessity of protecting one’s right to travel,

“This freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful-knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person.”
~ William O. Douglas, Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964) (concurring)

Stephen F. Daniels

Nationwide DUI Expert Witness/Consultant

DUI undo Consultants, LLC

www.DUIundo.com

The Truth, The ‘Hole’ Truth and Nothing but The Truth, blows a ‘Hole’ in CMI, Inc.’s Credibility

The “Hole” Truth and Nothing But The Truth

On March 27, 2006, the Intoxilyzer® 8000 was finally implemented as the evidential breath test instrument throughout the State of Florida.

To understand breath testing I need to lay a foundation so you know how we got to where we are today in Florida’s breath testing.

In 1998, as part of the Transportation Equity Act for the 21st Century (TEA-21), a new Federal incentive grant was created to encourage States to adopt a .08 BAC illegal per se level.   It is illegal per se (in itself) to drive a motor vehicle with a blood alcohol concentration (BAC) at or above a specified level in all States. The previ­ous level in most states had been .10 BAC for drivers 21 and older, but now 45 States, the District of Columbia, and Puerto Rico have enacted laws that set a lower level of .08 BAC. In a 1992 Report to Congress, NHTSA recommended that all States lower the illegal per se level to .08 for all drivers 21 and older.

In 2000, Congress passed the DOT Appropriations Act of FY 2001, adopting .08 BAC as the national illegal limit for impaired driving. The statute provides that States that do not adopt a conforming .08 BAC law by October 1, 2003, will be subject to a withholding 2 percent of certain highway construction funds. Each year, the withholding percentage increases by 2 per­cent, up to 8 percent in FY 2007 and later. Those states that adopt a conforming .08 BAC law within 4 years of any withholding will be re­imbursed for those withheld funds.

So the government sets the impairment level at a .08 threshold in order for the states to receive the highway construction funds from the Transportation Equity Act.  Then the government creates a ‘list’ of Department of Transportation (DOT) ‘approved’ breath test devices.  The ‘list’ is called the ‘Conforming Product List’ (CPL).

The states then draft their implied consent laws to specifically state that the only breath test devices that can be used as an evidentiary breath test device in their state must be listed on the DOT – CPL.

The first problem  is that the government sets the impairment threshold at .08 and then lists the so-called ‘approved’ breath test machines on the DOT CPL, but then that same ‘authority’ fails to format testing guidelines advising the states how to breath test for that same .08 BrAC threshold.  Most states require two breath samples but there are over twenty states only require one breath sample.  A breath test with only a single sample result does not eliminate the possibility of a false high from mouth alcohol or interferents or RFI, but the saying goes, ‘that’s good enough for government work, right?’

Now on to the rest of the story ~

The ‘Hole’ Truth and Nothing but the Truth blows a ‘Hole’ in CMI, Inc.’s Credibility

Let’s start from the beginning:

DIAGNOSTICS CHECK ~

In 2001 CMI, Inc. sent their new breath test machine, the ‘Intoxilyzer 8000®’  to the Volpe Lab which is a division of the Department of Transportation (DOT) National Highway Traffic Safety Association (NHTSA) Alcohol Countermeasure Support Program.  Under Section 403 of the Highway Safety Act of 1966, the Secretary of Transportation is required to carry out a research and demonstration program. In the area of alcohol breath testing, the requirements of the Act are met by the NHTSA through the Office of Traffic Injury Control Programs and the Office of Research and Traffic Records. They are supported by the Volpe Center – Volpe Lab which evaluates alcohol breath measurement devices intended for police use. Alcohol breath measurement devices are evaluated according to NHTSA’s Model Specifications for Evidential Breath Testers, Alcohol Screening Devices, and Calibrating Units. Those devices that meet the specifications are added to NHTSA’s Conforming Products Lists (CPL’s.)

Air Blank ~

The magical machine passes DOT testing:

The Intoxilyzer 8000® was placed on the US DOT Conforming Products List (CPL)list on October 3, 2002; this is the only version of the Intoxilyzer 8000® placed on this list.  The BiG question is how did the Intoxilyzer 8000® pass DOT testing when by all indications, either CMI, Inc. received ‘preferential’  treatment from DOT, or DOT didn’t follow their own testing procedures.   Here’s testimony from CMI, Inc’s former Engineering Manager William Schofield giving a little insight into that ‘preferential treatment’…

CONTROL TEST ~

Feb. 24, 2010 ~ En Masse Hearing, West Palm Beach, FL 

Defense Counsel:  Brian Gabriel, Esq.

Engineering Manager for CMI, Inc.:  William Schofield

Brian Gabriel, Esq:     According to DOT, when a manufacturer of an instrument wishes to get and instrument approved to start selling it and making money, they have to supply the Dept. of Transportation Volpe Labs with information,  correct?

William Schofield:      That’s correct.

Brian Gabriel, Esq:      They have to supply them with, according to Defense Exhibit Number 79, the Operators Manual and Maintenance Manual will be delivered with the EBT with specifications and drawings which fully describe the device, right?

William Schofield:      Yes, sir.

Brian Gabriel, Esq:      Now, the documents you have given us through discovery and the State has given us through discovery is all after that occurred.  Do you have copies and will you disclose to this court the documents you sent to DOT in the time period of January through June of 2001?

William Schofield:      Yes, I sent them a Preliminary Operators Manual and that’s all.

Brian Gabriel, Esq:     Okay. So the Preliminary Operators Manual and that’s all that you sent, is what you are telling us?

William Schofield:      Yes.

Brian Gabriel, Esq:      So you are admitting that you are not complying with DOT’s won standards but they didn’t say anything about it, is that what you are telling this court?

William Schofield:      DOT did not enforce every [indiscernible], we did not send anything other than the Preliminary Operators Manual.

Brian Gabriel, Esq:      So when – – what you are saying is that for CMI, DOT is not following its own regulations? They cut breaks for CMI right? Why are they doing that, is what I want to know.

William Schofield:      I guess you would have to ask DOT.

Brian Gabriel, Esq:      Well, do you have any knowledge to be able to impart to these Judges sitting here of why it seems that CMI, Inc. is getting a break from DOT, why they are not following their own regulations?

William Schofield:      First of all, I don’t know that it’s just CMI.  Typically, when instruments develop, the manuals are not completed until a later date, especially a service manual because you want to know what some of the problems are going to be with the instruments and how to service it. Really what DOT accepts is how to operate the instrument and how to perform the testing.

Brian Gabriel, Esq:      Now, would you agree with me that these documents, I guess it’s your testimony right now, I guess, that you did not turn over the documents required to DOT, all you gave them was the manual?

William Schofield:      That’s correct.

Air Blank ~

So DOT doesn’t follow its own testing procedures but goes ahead and lets the Intoxilyzer 8000 ® pass their ‘modified’ testing procedures and then lists the Intoxilyzer 8000 ® on the October 3, 2002 Conforming Product List (CPL).

Florida approves the Intoxilyzer 8000 ® in violation of Ch. 11D-8 Rules:

The abuse of government power continues when FDLE/ATP ‘approved’ Florida’s Intoxilyzer 8000® based on evaluation conducted on May 29, 2002 which was prior to DOT listing it on the DOT CPL on October 3, 2002.  This ‘approval’ was done in violation of Florida’s Ch. 11D-8.003, the Implied Consent Rules in effect at that time which state:  FDLE/ATP Form 34 – Revised March 2004, Ref. 11D-8.003 states that: ~ Only breath test instruments listed on the US Department of Transportation Conforming Products List of Evidential Breath Measurement Devices will be evaluated. How did Florida ‘approve’ the Intoxilyzer 8000®?  FDLE/ATP ‘approved the Intoxilyzer 8000® based on a letter dated November 26, 2001 that DOT sent to CMI, Inc. stating that “It is expected that the device will appear on the next update on the NHTSA Conforming Products List for evidential breath testers.”

Nov. 26, 2001 DOT letter from Arthur Flores to Toby Hall of CMI, Inc.

The story gets better…..

SUBJECT SAMPLE # 1

FDLE/ATP’s – Mission Statement states:

Alcohol Testing Program Mission Statement

To enhance public safety by ensuring the accuracy and scientific reliability of evidentiary blood and breath alcohol tests, facilitating enforcement of Implied Consent Laws and Administrative Rules, and promoting the qualifications and  professionalism of persons responsible for blood and breath alcohol analyses in the State of Florida.

As authorized in Chapters 316, 322 and 327, FS, and chapter 11D-8, FAC.

The Alcohol Testing Program has exclusive responsibility for: (1) the regulation of the operation, inspection and  registration of breath test instruments; (2) the regulation of the individuals who operate and inspect evidentiary breath test instruments; and (3) the regulation of blood analysts who conduct blood alcohol testing.

With that in mind you have to ask yourself the following two questions, ‘Why was FDLE/ATP able to evaluate &  approve a breath test machine in violation of Ch. 11D-8.003 that states, “ Only breath test instruments ‘listed’ on the US Department of Transportation Conforming Products List of Evidential Breath Measurement Devices ‘will be evaluated’  No where does the Ch. 11D-8.003 rule state that FDLE/ATP can evaluate and approve a breath test instrument because, ‘It is expected that the device ‘will appear’ on the ‘next’ update of the NHTSA CPL’.

AND ~

How can the public trust FDLE/ATP when the very foundation of their mission statement is  … “To enhance public safety by ensuring the accuracy and scientific reliability of evidentiary blood and breath alcohol tests”  when ‘ensuring the accuracy and scientific reliability of evidentiary breath test is impossible based on CMI, Inc’s warranty of the Intoxilyzer 8000®…???

SELLER HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE

BREATH VOLUME ~

What…???  That’s right….!!! CMI, Inc. does not even warranty the Intoxilyzer 8000® for BREATH TESTING…. now you know why the Intoxilyzer 8000® is refered to as the ‘Magical Machine’…
AIR BLANK~

On March 28, 2012 during a Motion hearing in front of an En Banc panel in Sarasota, FL County Court it was disclosed by a former FDLE/ATP Dept. Inspector Matthew Malhiot and confirmed by a current FDLE/ATP Department Inspector Roger Skipper that CMI, Inc. drilled a hole in the exhaust valve (purge valve) in every Florida Intoxilyzer 8000® during August of 2004.  FDLE/ATP Dept. Inspector Roger Skipper testified:

Skipper:          We did a combination of things. The engineers drilled the hole in the valve that we have been speaking of.  I believe it’s — to the best of my memory it’s approximately 3/32nds or something like that in diameter. It’s a very extremely small hole.

Mr. Rasnake: But you were present at CMI when the solution to drill the hole in the exhaust valve took place?

Skipper:          Yes.

Mr. Rasnake:  So that was a change you were personally aware of?

Skipper:          Yes. CMI notified us of that change directly in person. Myself and Mr. Malhiot were there. They told us and we reported the change directly to Ms. Barfield.

The reason for the hole was that the Intoxilyzer 8000® was under -reporting the wet bath solutions almost two-hundredths law (.02 low), i.e. the .08 was being reported as .061, the .200 was being reported as .181.  The allowable tolerance level for the .08 was between .075 – .085, and for the .200 was between .190 – and .210.  With the Intoxilyzer 8000® analyzing the ‘known’ alcohol reference solutions out of the tolerance range, the machines would have never passed Florida’s required monthly Agency Inspection testing.

Air Blank ~

Let’s back up a little bit.  If there were problems in August 2004 with the Intoxilyzer 8000 during the wet-bath simulator testing sequences, how did the Intoxilyzer 8000® pass the same testing sequences during the ‘approval testing process that FDLE/ATP conducted back in Jan. – May 2002 in violation of Ch. 11D-8.003?  So the testing was conducted in violation of Ch. 11D-8.003, what else is FDLE/ATP not disclosing?  Was there a cover-up of this ‘Control Outside of Tolerance’ problem in the FDLE/ATP  ‘approval testing process? The following email from FDLE/ATP Dept. Inspector Roger Skipper documents that the Intoxilyzer 8000 experienced the same ‘Control Outside of Tolerance’ problem ‘during’ the approval testing process:

SUBJECT SAMPLE # 2

To see this email click on the link below to go to FDLE/ATP’s website  and see p. 63

http://www.fdle.state.fl.us/Content/getdoc/9df7fd48-4abb-46d8-9e66-d6ab3e8ed066/FieldTestingNotes-Memosetc2002.aspx

Alright back to the ‘drilled hole’ discussion,

The engineering brains at CMI, Inc.  decided to try using a shot-gun approach in solving the ‘Control Outside of Tolerance’ / purge problem.  After a trial and error shotgun approach to solve this problem the engineers at CMI, Inc. decided the Intoxilyzer 8000® had an air flow/air pump/ purge problem and finally decided to drill a hole in the exhaust valve.  This brought the reported values back into tolerance.  Attached please find several pictures and the engineering change notice (ECN) for the hole drilled in the exhaust valve purge valve of the Intoxilyzer 8000®.

.058 hole drilled in the exhaust valve of the Intoxilyzer 8000® in August 2004.

The drilled hole is .058 ± .004 ml or about the ½ size of a sphere for ball point pen.

The ‘Hole’ Truth

Fomrer FDLE/ATP Dept. Inspector now a defense Expert, Matthew Malhoit and current FDLE/ATP Dept. Inspector Roger Skipper both testifed that the reason the hole was drilled was due to a Control Outisde of Tolerance /purge problem that was created by a lack of air running through the sample chamber/analytical pathway/check valve. Now, check out the comments in the Engineering Change Request / Notice (ECN) section ‘REASON FOR CHANGE AND/OR COMMENTS above:

COMPENSATION FOR LEAKS IN RECIRCULATION PATH.

What…??? Those comments do not make any sense.  If there were ‘already’ leaks in the recirculation path, why would Willaim Schofield (Engineering Manager for CMI, Inc.) decide to ‘drill another hole’ in a system that already has leaks…???

This is the first ‘breath of doubt’ in  CMI, Inc’s ‘credibility…!!!

The exhaust valve/ purge valve is an integral part of the Intoxilyzer 8000® and any modifications to this valve could affect the analytical reliability of subject breath tests. During the same Motion hearing Dr. Harley Myler testified for the defense that these changes were “significant engineering modifications” to the valve which would require another recertification/approval process in Florida.

The modified valve is an integral part of the purging mechanism of the Intoxilyzer 8000®. It is important that the Intoxilyzer only analyze air from the subject being tested. In order to reliably analyze the subject’s breath, prior to analysis, the Intoxilyzer must purge the sample chamber of all alcohol, including alcohol introduced during control tests or left over from a previous subject test.  Based on this recent disclosure, the reliability of any breath test results cannot be deemed to be scientifically reliable or accurate.  This disclosure also creates reasonable doubt as to whether or not the results are quantitative of a person’s blood alcohol level at the time of driving or at the time of the breath test.

Florida’s Intoxilyzers serial numbers start at 80-000200.  This modification also affects every Intoxilyzer built after August-2004 that is used in over 25 states.  The significance of this discovery is that, the modification of the exhaust valve changed the analytical reliability of the Intoxilyzer 8000® because without the modification the Intoxilyzer 8000® would not have passed the wet-bath simulator testing that is required during Florida’s Ch. 11D-8 monthly inspections.

The state wants the courts and juries to believe that the Intoxilyzer 8000® produces scientifically reliable and accurate results but ever since Florida went on-line with the Intoxilyzer 8000 in March 2006 the defense has found one defect after another and exposed one cover-up after another.  The following is a perfect example of one of the defects where this magical machine produces BrAC results with a 0.000 breath volume.

In 2006-2012 the defense found hundreds of breath test results (BrAC) with no breath volume supplied. WHAT…??? Back in 2006 we found hundreds of BrAC results with a 0.000 breath volume. How do you get a BrAC result with no breath sample supplied…??? Remember, the Intoxilyzer 8000® is a magical machine.  What was FDEL/ATP’s excuse?  FDLE/ATP called CMI, Inc. and ‘someone’ came up with the ‘excuse’ or maybe it was a great job by CMI, Inc’s PR Dept. to manage damage control and spin the ‘story’ that there was a glitch in the 8100.26 Software where a Subject had only 3 minutes to provide a breath sample.  ‘Supposedly’ the excuse that was spun by FDLE/ATP and CMI, Inc. was that the Subject started providing a breath sample at 2:55 seconds into the 3 minute window and blew ‘past’ that 3 minute window and that the Intoxilyzer 8000® correctly analyzed the sample provided into the machine but since the Subject ‘blew’ past the 3 minute window, the device correctly reported the BrAC sample that was provided but reported 0.000 for the breath volume.

Okay, I’ll give them that one.  So what happens next?  CMI, Inc’ develops Software version 8100.27 that is ‘supposed’ to eliminate this ‘Software glitch’, right?  WRONG?  After Software version 8100.27 was implemented into all of Florida’s Intoxilyzer 8000®’s by FDLE/ATP, we started seeing more BrAC results with 0.000 breath volume.

BREATH VOLUME ~

Here’s one example from 2008 with 8100.27 Software ~

 Now what was FDLE/ATP and CMI, Inc’s ‘excuse’ for yet another anomaly?  The damage control spin this time was that a subject provided a breath sample that did not meet volume into the instrument; the instrument saves the alcohol result obtained and the breath volume associated with that breath sample. Because a valid sample has not been received, the instrument will display PROVIDE SAMPLE NOW. The subject will have up to three (3) minutes to provide a valid sample. The subject subsequently provides an additional strong puff of breath that is sufficient to reset the flow meter to 0.000 Liters, but the puff is not sufficient enough in flow or sustained long enough to begin the calculation of an alcohol result. The instrument reports the alcohol result from the first insufficient volume breath sample (reported as VOLUME NOT MET) but reports the breath volume (0.000 Liters) from the second additional strong, non-sustained puff of breath.

Yeah,  CMI, Inc. expects the court and jury to ‘believe’ that the software was written to ‘remember the ‘highest BrAC’ but not the highest breath volume’…. yeah, that excuse is believable.  Doesn’t this sound like the ol’ saying, it’s good enough for government work, right?

AIR BLANK ~

Speaking of government work,  did CMI, Inc. ever notify DOT of the modification to the Intoxilyzer 8000®.  No…!!!  Need proof?  Here’s an affidavit for Brian Falkner the Engineering Manager for CMI, Inc. ~

CMI, Inc. DID NOT notify DOT of modification

This is the second ‘breath of doubt’ in CMI, Inc’s ‘credibility’…!!! (the purpose of two breath samples in a breath test is that the second sample is ‘supposed to’ confirm the first sample’s result, ‘if‘ the device is ‘operating properly’ with the key words here being –operating properly. Without full transparency one cannot verify if the Intoxilyzer 8000® was ‘operating properly’.)

[I will write another Blog on the ‘Pull the Plug’ situation that happened in Florida where an FDLE/ATP Department Inspector ‘Pulled the Plug’ to delete failing test results and when a Hillsborough County Sheriff Office Agency Inspector falsified a testing failure excuse ‘(Replaced O-Ring) allowing her to ‘cover-up the malfunction/Control Outside of Tolerance testing failure. The Intoxilyzer 8000® stayed in evidentiary service. In regards to this situation, I also met with FDLE/ATP Alcohol Program Manager Ms. Laura Barfield and showed her the following video, to which both FDLE/ATP and HSCO failed to act on. ~  Fake O-Ring Excuse by HCSO AI Beverly Gray on 06-18-2008).]

Provide Sample Now:

Did CMI, Inc. ever notify FDLE/ATP of the modification?  NO…!!! Again, CMI, Inc. disregards their contractual duties to clients.  Per the rules in effect at the time, specifically, Florida’s F.A.C. Ch.11D-8.003 (5) states that, “A manufacturer whose instrument has been previously approved by the Department (FDLE/ATP) shal notify the Department (FDLE/ATP) in ‘writing’ prior to making an modification or adding a new option to such instrument. The Department shall ‘evaluate such modifications or options to an approved breath test instrument and determine whether they affect the instrument’s method of analysis (it did not, still infrared spectrometry analysis) or analytical reliablility (it did, without modification the device would have never passed the Ch. 11D-8 required monthly Agency Inspection):

NOTICE: ~ ‘shall notify the Department in writing prior to making any modification’

CONTROL TEST ~

What does the Federal Register/ Vol. 58, No. 179 / pp 48705-48710 / Friday, September 17, 1993 / Notices (58 FR 48705) say?

Highway Safety Programs; Model Specifications for Devices to Measure Breath Alcohol

Agency: National Highway Traffic Safety Administration, DOT.

Action: Notice.

 

So, CMI, Inc. modified the Intoxilyzer 8000®, then they DID NOT notify the NHTSA or DOT of the ‘modification’ but, the bigger questions are who is responsible for posting the Federal Register/ Vol. 58, No. 179 / pp 48705-48710 / Friday, September 17, 1993 / Notices (58 FR 48705) on the DOT Volpe Lab website?  And, who edited the FR/Vol. 58, No. 179 / pp 48705-48710, Friday Sept. 17, 1993?

AIR BLANK ~

Volpe Labs was this same edited version posted on their website which is mysteriously missing the last two paragraphs of Appendix B, which state:

If necessary for clarity, drawings of the current and changed device may also be helpful in NHTSA’s deliberations.

If, upon review of information provided by the manufacturer, it is determined that re-testing is not warranted, statement to that effect will be included in the next scheduled CPL update.

http://www.volpe.dot.gov/coi/ees/docs/ebt-model-specifications.pdf

DIAGNOSTICS CHECK ~

~ CMI, Inc. DID NOT notify NHTSA – DOT of the modification to the Intoxilyzer 8000® and Volpe Lab a division of DOT has a misleading Federal Reg on their website. Considering all of the above information, one has to wonder who is responsible for a breath test device that is NOT listed on the DOT CPL being used in over 25 states as an evidentiary breath test device. Is DOT responsible? Is Volpe Lab responsible? Or is CMI, Inc. solely responsible due to their admission of withholding the information from DOT? The next questions one has to ask is since CMI, Inc. has admitted that they DID NOT inform NHTSA – DOT of the modification, has CMI, Inc. now opened itself to a potential STRICT PRODUCT LIABILITY class action lawsuit?

The most recent evolution in tort law, strict liability, has transformed the very nature of product liability because it eliminates the entire question of negligence. Strict liability only requires a plaintiff to demonstrate that a product caused an injury because it was defective; the reason for the defect is irrelevant. The product itself, not the defendant’s use, is under investigation.

Under strict liability, the manufacturer is held liable for allowing a defective product to enter the marketplace. The issue is a matter of public policy, not the manufacturer’s unreasonable or negligent conduct. The introduction of a defective product into the marketplace brings each member of the product’s distribution channel into liability for negligence. The theory of strict liability holds that manufacturers: have the greatest control over the quality of their products; can distribute their costs by raising prices; and have special responsibilities in their role as sellers.

Maybe, just maybe, DOT, Volpe Lab and CMI, Inc. are involved and this is a conspiracy to cover this up…. just my thoughts ~

What’s next for the Intoxilyzer 8000®?

It’s the same story as the Intoxilyzer 5000®, when there is a problem or when the defense exposes the flaws with ‘current’ or newest EBT like the Intoxilyzer 8000® or when the EBT becomes a financial drain because of all the legal challenges, CMI, Inc.’s standard operating procedure is to phase out that Intoxilyzer and launch the ‘new and improved Intoxilyzer —- so get ready for CMI, Inc’s nationwide launch of its newest ‘magical machine, the Intoxilyzer 9000®.

RESULTS ~

The only question each state should ask before they decide to do business with CMI, Inc. and spend millions of taxpayer dollars on the new and improved ‘Intoxilyzer 9000®’ is…. “Can CMI, Inc. be trusted anymore or does their credibility have a gaping hole in it…???

Well, maybe not gaping hole, just a .058 hole….. but that .058 hole is the difference between scientific reliability and another judicial financial nightmare like the Intoxilyzer 8000 was for the state.

In the meantime, almost every state that uses the Intoxilyzer 8000® has specific language in their respective statutes that require their EBT to be listed on the DOT CPL.  Since CMI, Inc. has admitted that they never notified NHTSA or DOT of the modification, the Intoxilyzer 8000® used in over 25 states is not ‘currently’ listed on the DOT CPL. I believe that there is more than enough evidence here to suppress every breath test result from every Intoxilyzer 8000® used in every state.

In addition, this evidence not only covers pending DUI charges but,  potentially all breath test evidence all the way back to March 2006  was inadmissible based on the recent discovery that the Intoxilyzer 8000® was modified after it was listed on the DOT CPL. This discovery means that ‘the Intoxilyzer 8000® currently in use in Florida is NOT an Ch. 11D-8 approved breath test device’ in addition, ALL ‘Intoxilyzer 8000’s® in use in the United States are NOT listed on the DOT CPL.  Florida’s Ch. 11D-8 rules require that all evidentuary breath test devices used in Florida must be listed on the DOT CPL.   Anyone who was arrested for DUI in Florida who was convicted or plead out to a DUI charge with evidence from March 2006 until the modified Intoxilyzer 8000® is listed on the DOT CPL could potentially petition the court to reopen their case by filing a 3.850 Motion For Post Conviction Relief based on this new evidence.

If you need additional information on this issue please contact me.

 Stephen F. Daniels

http://www.DUIundo.com

CMI, Inc. is launching the Intoxilyzer 9000

Out with the old junk science in with the new junk science….

CMI, Inc. is launching the Intoxilyzer 9000

Rumor?  No. The curtain on the Intoxilyzer 8000 a.k.a. the ‘magical machine’ has been pulled back and the ‘flaws’ in the Intoxilyzer 8000 have been exposed.  Florida has lead the nation in challenging the Intoxilyzer 8000 and as a result the manufacturer CMI, Inc. has taken a financial beat down in Attorney fees fighting those battles in court.  So, how does a company stop the financial bloodletting?  Repackage the junk science and re-launch it as a new and improved piece of ‘junk science’ — so the music has stopped but the dance continues.

Need proof? Here’s some email correspondence from CMI, Inc. Corporate Counsel  Alan C. Triggs, Esq.

From: Triggs, Alan [mailto:ACTriggs@alcoholtest.com]
Sent: Wednesday, June 20, 2012 11:41 AM
To: Polly McFadden
Subject: Information

Polley,

I did not forget about you.  We are in the middle of launching the 9000 so the president did not respond until now.  Attached is what you are looking for.  Let me know if you need anything else.  Just to note, this is the only change order we will provide.  It is the only one relevant to the litigation.  I hope this helps.  Unfortunately, I believe the defense will come up with something else to argue about.

Alan C. Triggs, Esq.

Corporate Counsel/Compliance Officer

CMI, Inc.

(270) 685-6681

---

Please note: Florida has a very broad public records law. Most written communications to or from state officials regarding state business are public records available to the public and media upon request. Your e-mail communications may therefore be subject to public disclosure.

——– Original Message ——–
Subject: FW: Information
From: Polly McFadden <Pmcfadden@sa15.state.fl.us>
Date: Fri, June 22, 2012 12:06 pm
To: Polly McFadden

Polly McFadden

Chief of County Court

Office of the State Attorney

401 N. Dixie Highway

West Palm Beach, Fl 33401

(561)355-7151

Fax (561)355-7020

Here’s a picture of the Intoxilyzer 9000

Check back later for my future post on the Intoxilyzer 9000.  I have made a FOIA on the DOT NHTSA Volpe Labs for all test results and all information regarding the Intoxilyzer 9000 including all manuals/information supplied by CMI, Inc.

The MADDness of MADD ~ Passive Alcohol System

The MADDness of MADD.  Get ready to kiss your Right to TRAVEL FREELY, UNENCUMBERED, and UNFETTERED and your right to unreasonable searches good~bye.  MADD  is pushing for a passive alcohol system to be installed in every car manufactured in the world. Here is an early preview of how the system may work.

http://www.madd.org/media-center/press-releases/2011/madd-applauds-senate-for.html