County Criminal Court: CRIMINAL LAW --- DUI –  Source codes for the Intoxilyzer 5000 breath test machine are not discoverable. Judgment and sentence affirmed. Licari v. State, No. CRC 06-65 APANO (Fla. 6th Cir.App.Ct. March 31, 2008).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

WADE M. LICARI

 

            Appellant,

                                                                              Appeal No. CRC 06-65 APANO

                                                                              UCN522006AP000065XXXXCR

v.

 

STATE OF FLORIDA

 

            Appellee.

__________________________/

 

Opinion filed _________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Donald E. Horrox

 

Charles E. Lykes, Jr., Esquire

Attorney for appellant

 

C. Marie King, Esquire

Assistant State Attorney

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the defendant, Wade Licari’s, appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            The defendant was convicted of DUI. He claims that his motion to suppress/ motion to compel should have been granted because the State failed to disclose the “source codes” for the Intoxilyzer 5000 machine used to test the alcohol content of breath samples. In its well-written and well-reasoned order, the trial court properly denied the defendant’s motion.

            It is now well-settled that the State is not required to disclose the source code for breath test machines. In Moe v. State, 944 So.2d 1096, 1097 (Fla. 5th DCA 2006), a case rendered after the trial court entered its order, the District Court stated that: “It is without dispute that the State does not have possession of the source code because it is the property of CMI, Inc. and that CMI, Inc. has invoked its statutory and common law privileges protecting the code from disclosure. Therefore, the State cannot obtain possession of the code.”

            IT IS THEREFORE ORDERED that this Court affirms both the judgment and the sentence.

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of March, 2008.

                                                            _____________________________

                                                                        Joseph A. Bulone

                                                                        Circuit Court Judge

 

 

 

                                                            _____________________________

                                                                        David A. Demers

                                                                        Circuit Court Judge

 

 

 

                                                            ______________________________

                                                                        Cynthia J. Newton

                                                                        Circuit Court Judge

cc:        Office of the State Attorney

            Honorable Donald E. Horrox

            Charles E. Lykes, Jr., Esquire