The ongoing legal row over using an alcohol-sensing breath machine in Florida Keys DUI investigations is widening after a judge upheld a lower court's ruling ordering the government to explain how the device works.

Circuit Judge David Audlin has agreed with county Judge Peary Fowler's 2009 ruling that Intoxilyzer 8000 results cannot be used as evidence until the manufacturer provides computer information, called source code, to explain how it works, which it has not done.

Audlin also remanded the case back to Fowler for her to determine who is responsible for explaining the source code -- the state or the manufacturer -- and if possible, order the disclosure of that information without compromising any trademarked information. Thus far, the source code has been guarded as a trade secret by its maker, CMI Inc. of Owensboro, Ky.

Obtaining the source code may be irrelevant if the state can "produce evidence of showing reliability of the machine," Audlin wrote in his ruling. "Whether the state can meet its burden of proof absent disclosure of the source code to the trial court remains to be seen."

The state maintains it cannot explain the source code because CMI Inc. owns it and will not release it. Defense attorneys representing DUI suspects maintain the state must be able to provide and explain the computer information if it is convicting people based on that information.

Key West attorney Hal Schuhmacher and Miami attorney Richard Hersch argued that defendants' rights are violated if no one is willing to explain in scientific terms how the device gathers evidence during blow tests.

Schuhmacher and Hersch challenged the legal use of the machine after a Florida Department of Law Enforcement (FDLE) officer tasked with annual inspections of all the devices in South Florida, including Monroe County, was fired in 2008 for not reporting flawed machines. Instead, she would cut the power, which erased a digital report of the failed inspection, according to court records.

"There is a constitutional requirement that gives a person the right to confront the evidence against them," Schuhmacher said. "These magic boxes turn our criminal justice system on its head."

Hersch has challenged the issue elsewhere in the state.

"This is not a win or loss for us," he said. "It's a process of validating the reliability of these machines. What this means is that we're closer to getting those source codes and that breath tests are still inadmissible in Monroe County."

Law enforcement and prosecutors can still use the Intoxilyzer 8000 results in court; however, there can be no presumption of guilt based on the results of the device, said Assistant State Attorney Paunece Ramage. That means police and prosecutors must use more traditional DUI evidence such as officer testimony or patrol car video footage of someone swerving, Ramage said.

The State Attorney's Office has not determined how it will proceed in light of Audlin's ruling, Ramage said.

"This is going to have statewide implications," Schuhmacher said. "The problem from their (prosecutors') perspective is that this is creating delays in DUI cases and at some point a decision has to be made on how these cases are going to be litigated."

alinhardt@keysnews.com