Attacking Breath Test Results and Procedures

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The admissibility of breath test results hinges on law enforcement officers substantially complying with the administrative rules for maintaining and administering the breath test using the Intoxilyzer 8000, which is the standard breath test machine in Florida. The FDLE has been granted authority to set the rules, but the same statute which grants the authority requires strict adherence to them, or else the results may not be admissible.

When challenging a DUI breath test case, it is crucial for the attorney to meticulously examine the records pertaining to the specific Intoxilyzer 8000 device employed. Each device possesses a unique serial number, which can be located on the breath test results during the discovery process.

Furthermore, the attorney can access all electronic data concerning that breath test machine on the FDLE website. The FDLE website provides an abundance of information regarding all breath test samples conducted on that particular device. This includes comprehensive details about annual departmental inspections, monthly agency inspections, as well as field notes and other correspondences that reveal any observed irregularities. However, it is important to note that these documents are often enigmatic in nature. They aim to explain any irregularities in a manner that implies the problem does not compromise the accuracy and dependability of the instrument.

A skilled DUI lawyer will thoroughly examine the breath test machine utilized in your case to uncover any issues related to its usage or maintenance. Should the attorney discover any problems, they may proceed to file a motion to exclude the breath test evidence. Issues with these decades-old machines are widespread. By filing a motion that alleges the lack of substantial compliance, it often compels the prosecutor to offer a resolution to the case in order to avoid a hearing. The legal professionals at the Law Office of Sean Clayton, P.A. possess extensive experience in filing and litigating motions that demonstrate a lack of substantial compliance with the administrative rules.

If you have been accused of DUI following a breath test, we encourage you to reach out to our attorneys to discuss your case.

At The Law Office of Sean Clayton, PA, our dedicated team of attorneys specializes in providing vigorous defense for DUI cases involving property damage in Fort Lauderdale, Miami, and West Palm Beach. Our primary objective is to achieve the best possible outcomes for our clients, often resulting in complete dismissal of charges or reduction to the lesser offense of reckless driving.

Additionally, we offer invaluable guidance to our clients throughout the administrative proceedings with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). Our advice includes strategic approaches that may enhance their chances of a favorable resolution. Ultimately, our goal is to assist clients in minimizing the long-term consequences associated with a DUI charge.

Following a DUI with property damage arrest in Fort Lauderdale or anywhere in South Florida, you will encounter two distinct cases:

1. Administrative Case: This case with the DHSMV focuses on the suspension of your driver’s license.
2. Criminal Case: The criminal case unfolds in the courts.

Our experienced DUI lawyers handle both types of cases across South Florida and can provide expert guidance on the best course of action for your situation.

We strongly encourage anyone accused of DUI with property damage to consult with an attorney early in the process. For assistance in selecting the right attorney, consider reviewing our Tips for Selecting a DUI Attorney.

Form 37 provides the steps which must be complied with by your local law enforcement agency in order to collect the breath sample. Under this form, the breath test operator (BTO) must perform the following tasks:

1. All results are reported to three decimal places in g/210L. The instrument must display READY MODE prior to beginning the breath test. Push the START TEST button to begin the breath test:

• Enter      Breath Test Operator last name, first name and middle initial at USER      prompts.
• DATE/TIME. Verify the displayed date and time. Change if necessary. Press ENTER.
• LAST      AGENCY INSPECTION DATE. Verify the      agency inspection date displayed. Press ENTER.
• CYLINDER      LOT#. Verify the dry gas standard      cylinder lot number. Change if      necessary. Press ENTER.
• EXPIRATION      DATE. Verify the dry gas standard      cylinder expiration date. Change if      necessary. Press ENTER.
• OBSERVATION      PERIOD BEGAN. Enter the time the      observation period began (at      least 20 minutes). 
• SWIPE      DL OR PRESS ENTER. Either swipe the      subject’s driver license or identification card or press ENTER. Enter applicable information as      prompted.
• DIAGNOSTICS CHECK. The result must be OK.
• AIR BLANK. The result must be 0.000. 
• CONTROL TEST. The result must be between 0.075 and 0.085, inclusive. 
• AIR BLANK. The result must be 0.000. 
• PROVIDE SAMPLE NOW. Have the subject provide a breath sample into the instrument.
• AIR BLANK. The result must be 0.000. 
• PLEASE WAIT. The instrument will countdown the time remaining for the wait period. 
• AIR BLANK. The result must be 0.000. 
• PROVIDE SAMPLE NOW. Have the subject provide a breath sample into the instrument.
• AIR BLANK.  The result must be 0.000. 
• Note: If there is no 0.020 g/210L agreement between first and second breath samples, the instrument will automatically request a third breath sample as follows:
• PLEASE WAIT. The instrument will countdown the time remaining for the wait period. 
• AIR BLANK. The result must be 0.000.
• PROVIDE SAMPLE NOW. Have the subject provide a breath sample into the instrument. 
• AIR BLANK. The result must be 0.000. 
• CONTROL TEST. The result must be between 0.075 and 0.085, inclusive.
• AIR BLANK. The result must be 0.000. 
• DIAGNOSTICS CHECK. The result must be OK.

2. If an external printer is used, FDLE/ATP Form 38 – Breath Alcohol Test Affidavit - Intoxilyzer 8000 will be automatically printed containing all the results. If no external printer is used, a printout slip containing all the results will be automatically printed. 

3. Complete FDLE/ATP Form 38 – Breath Alcohol Test Affidavit - Intoxilyzer 8000.

Failure of the BTO to comply with these steps can result in suppression of breath results in your DUI case. Suppression often leads to reduced charges or, sometimes, to cases being completely dropped.

Prior to conducting the breath test, officers are required to observe the accused in a "close and continuous" manner for at least 20 minutes.  This does not mean they have to stare at the individual, but they must be in a position to observe the suspect. Officers are supposed to watch for belches, vomit, consumption of food or drink, etc.  The reason is that these acts may result in introduction of alcohol or an adulterant to the mouth. This can result in an inaccurate BAC measurement.

Our office has seen officers standing outside of their car, back turned, gossiping away, with music blaring from their radio, while the defendant sits in the back seat being "observed" through a barely-cracked window. Needles to say, this does not meet the definition of close and continuous observation.  An unobserved small, polite burp can drastically affect breath test results. This is why you must have a diligent DUI lawyer examine every second of the video when one exists in your case. 

Often, the video of the breath testing area, in Fort Lauderdale it's called the Breath Alcohol Testing Unit or "BAT" unit, shows a technician too busy with the machine or too lost in conversation to provide meaningful observation of the subject.  A motion to suppress for a failure to properly observe the defendant may result in suppression of the breath test results. Ultimately, this could lead to a reduction in charges or even a dropped case.

The FDLE operates a program wherein they certify all BTOs. To become a BTO, the applicant must meet the following requirements:

• Eighteen (18) years of age or older;
• High school diploma or its equivalent;
• Present employment by an agency, or the Department; 
• Successfully complete the basic Breath Test Operator Course approved by the Criminal Justice Standards and Training Commission. 
• Submit to the Department a complete written application and proof of course completion, no later than ninety days after completion.

Breath test operators and agency inspectors must satisfy continuing education requirements in order to maintain valid permits. Continuing education requires successful completion of the applicable Commission-approved Renewal Course by June 30th following the fourth permit anniversary date, and during each subsequent four-year cycle. Successful completion of the Commission-approved Agency Inspector Course or Agency Inspector Renewal Course also satisfies an Agency Inspector's breath test operator continuing education requirements.

An experienced DUI lawyer will inspect everything, including the credentials of the BTO.  An improperly certified technician or one who forgets to renew their certification can place the BAC results in question.

Form 36 provides the steps which must be complied with by the Florida Department of Law Enforcement (FDLE) in order to provide the required "Department Inspection." Under this form, the inspector must perform the following tasks:

1. Prepare at least two simulators for use and allow them to warm up for at least thirty minutes prior to the first analysis.  When changing solutions, allow the new solution to warm up for at least ten minutes after the heater light turns off for the first time.  Ensure that each simulator maintains an air leak resistant seal and an operational temperature of 34 C (+/- 0.2 C).

2. Only distilled or deionized water will be used for the Alcohol Free Test and the Interferent Detect Test.  Class A glassware must be used when measuring solutions.

3. Only approved and non-expired alcohol reference solution and non-expired dry gas standard from an approved source must be used during the applicable portions of the inspection.

4. Press ESC twice to access the main menu.  Enter Department Inspector last name, first name and middle initial at USER prompts.  Press the 3 key to access the Department Inspector menu.  Enter password.  Scroll to Maintenance and press ENTER.  Scroll to Inspection Test and press ENTER.  Enter Department Inspector last name, first name and middle initial at INSPECTOR prompts.

5. All results are reported to three decimal places in g/210L.  The result must be 0.000 for each air blank.  The instrument will abort the inspection process if the air blank result is not 0.000.  Except for DIAGNOSTIC CHECK, if a check or test is out of compliance the instrument will prompt the Department Inspector to REPEAT (Y/N) the check or test.  Each check or test may only be repeated once.  If a check or test must be repeated, the REASON must be entered when prompted and recorded in the Remarks section of FDLE/ATP Form 41 Department Inspection Report – Intoxilyzer 8000.

• Verify DATE.  Adjust if necessary.  Press ENTER.  Verify TIME.  Adjust if necessary.  Press ENTER.
• MINIMUM SAMPLE VOLUME CHECK.  Press ENTER.  When PROVIDE SAMPLE NOW is displayed, provide a breath sample volume of less than 1.1L as shown on the display.  The instrument must again display PROVIDE SAMPLE NOW.  Provide a breath sample volume of greater than 1.1L as shown on the display.  The result must be 0.000.  Enter Y/N at the OK prompt.
• BAROMETRIC PRESSURE SENSOR CHECK.  Press ENTER.  Compare the displayed pressure to that of a barometric pressure gauge.  The displayed pressure must be within +/- 1% of the gauge reading.  Enter Y/N at the OK prompt.
• DIAGNOSTIC CHECK (Pre-Inspection).  Press ENTER.  The result must be OK for each diagnostic check.  If any diagnostic check result is not OK, the instrument will abort the inspection process.  
• NUMBER OF SIMULATORS USED.  Enter the number of simulators used during the inspection. 
• ALCOHOL FREE SUBJECT/MOUTH ALCOHOL TEST.  Press ENTER.  When PROVIDE SAMPLE NOW is displayed, introduce an alcohol-free breath sample into the instrument.  The result must be 0.000. Rinse mouth with mouth alcohol solution.  When PROVIDE SAMPLE NOW is again displayed introduce a breath sample into the instrument.  The result must be SLOPE NOT MET.
• ALCOHOL FREE TEST.  Attach a simulator containing 500 mL distilled or deionized water to the instrument.  Press ENTER.  Conduct ten (10) analyses.  The result must be 0.000 for each analysis.
• INTERFERENT DETECT TEST.  Attach a simulator containing 3 mL of acetone stock solution and 500 mL distilled or deionized water to the instrument.  Press ENTER.  Conduct ten (10) analyses.  The result must be INTERFERENT DETECT for each analysis.
• 0.05 g/210L TEST.  Attach a simulator containing 0.05 g/210L alcohol reference solution to the instrument.  Press ENTER.  Enter the lot number and expiration date of the alcohol reference solution used.  Conduct ten (10) analyses.  The result of each analysis must be within the acceptable range.
• 0.08 g/210L TEST.  Attach a simulator containing 0.08 g/210L alcohol reference solution to the instrument.  Press ENTER.   Enter the lot number and expiration date of the alcohol reference solution used.  Conduct ten (10) analyses.  The result of each analysis must be within the acceptable range.
• 0.20 g/210L TEST.  Attach a simulator containing 0.20 g/210L alcohol reference solution to the instrument.  Press ENTER.  Enter the lot number and expiration date of the alcohol reference solution used.  Conduct ten (10) analyses.  The result of each analysis must be within the acceptable range.
• 0.08 g/210L DRY GAS STANDARD TEST.  Attach a cylinder containing 0.08 g/210L dry gas standard to the instrument.  Press ENTER.  Enter the lot number and expiration date of the dry gas standard used.  Conduct ten (10) analyses.  The result of each analysis must be within the acceptable range.
• DIAGNOSTIC CHECK (Post-Inspection).  Press ENTER.  The result must be OK for each diagnostic check.  If any diagnostic check result is not OK, the instrument will abort the inspection process.  
• REVIEW REMARKS.  Enter Y/N.
• IN COMPLIANCE.  Enter Y/N to record whether the instrument complies or does not comply with the requirements of Chapter 11D-8, FAC.  If the instrument does not comply with Chapter 11D-8, FAC, remove the instrument from service and notify the Agency.

6. The results of the Department Inspection must be recorded on FDLE/ATP Form 41 Department Inspection Report – Intoxilyzer 8000.  The standard deviations, and the average standard deviation, for the 0.05, 0.08 and 0.20 g/210L tests must not be larger than 0.0042 with the fifth decimal place truncated.  

Failure of the FDLE inspector to comply with these steps can result in complete suppression of breath results in your DUI case.

Form 36 provides the steps which must be complied with by your local law enforcement agency in order to provide the required "Agency Inspection" Under this form, the inspector must perform the following tasks:

1. Prepare at least two simulators for use and allow them to warm up for at least thirty minutes prior to the first analysis. When changing solutions, allow the new solution to warm up for at least ten minutes after the heater light turns off for the first time. Ensure that each simulator maintains an air leak resistant seal and an operational temperature of 34 C (+/- 0.2 C).

2. Only distilled or deionized water must be used for the Alcohol Free Test and the Interferent Detect Test. Class A glassware must be used when measuring solutions.

3. Only approved and non-expired alcohol reference solution and non-expired dry gas standard from an approved source must be used during the applicable portions of the inspection.

4. Press ESC twice to access the main menu. Enter Agency Inspector last name, first name and middle initial at USER prompts. Press the 2 key to access the Agency Inspector menu. Enter password. Scroll to Inspection Test and press ENTER. Enter Agency Inspector last name, first name and middle initial at INSPECTOR prompts.

5. All results are reported to three decimal places in g/210L. The result must be 0.000 for each air blank. The instrument will abort the inspection process if the air blank result is not 0.000. If any test is out of compliance the instrument will prompt the Agency Inspector to REPEAT (Y/N) the test. Each test may only be repeated once. If a test must be repeated, the REASON must be entered when prompted and recorded in the Remarks section of FDLE/ATP Form 40 Agency Inspection Report – Intoxilyzer 8000.

• Verify DATE. Adjust if necessary. Press ENTER. Verify TIME. Adjust if necessary. Press ENTER.
• DIAGNOSTIC CHECK (Pre-Inspection). Press ENTER. The result must be OK for each diagnostic check. If any diagnostic check result is not OK, the instrument will abort the inspection process. 
• NUMBER OF SIMULATORS USED. Enter the number of simulators used during the inspection. 
• ALCOHOL FREE SUBJECT/MOUTH ALCOHOL TEST. Press ENTER. When PROVIDE SAMPLE NOW is displayed, introduce an alcohol-free breath sample into the instrument. The result must be 0.000.  Rinse mouth with mouth alcohol solution. When PROVIDE SAMPLE NOW is again displayed introduce a breath sample into the instrument. The result must be SLOPE NOT MET.
• ALCOHOL FREE TEST. Attach a simulator containing 500 mL distilled or deionized water to the instrument. Press ENTER. Conduct three (3) analyses. The result must be 0.000 for each analysis.
• INTERFERENT DETECT TEST.  Attach a simulator containing 3 mL of acetone stock solution and 500 mL distilled or deionized water to the instrument. Press ENTER. Conduct three (3) analyses.  The result must be INTERFERENT DETECT for each analysis.
• 0.05 g/210L TEST. Attach a simulator containing 0.05 g/210L alcohol reference solution to the instrument. Press ENTER. Enter the lot number and expiration date of the alcohol reference solution used. Conduct three (3) analyses. The result of each analysis must be within the acceptable range.
• 0.08 g/210L TEST. Attach a simulator containing 0.08 g/210L alcohol reference solution to the instrument. Press ENTER.  Enter the lot number and expiration date of the alcohol reference solution used.  Conduct three (3) analyses. The result of each analysis must be within the acceptable range.
• 0.20 g/210L TEST. Attach a simulator containing 0.20 g/210L alcohol reference solution to the instrument. Press ENTER. Enter the lot number and expiration date of the alcohol reference solution used. Conduct three (3) analyses. The result of each analysis must be within the acceptable range.
• 0.08 g/210L DRY GAS STANDARD TEST. Attach a cylinder containing 0.08 g/210L dry gas standard to the instrument. Press ENTER. Enter the lot number and expiration date of the dry gas standard used. Conduct three (3) analyses. The result of each analysis must be within the acceptable range.
• DIAGNOSTIC CHECK (Post-Inspection). Press ENTER. The result must be OK for each diagnostic check. If any diagnostic check result is not OK, the instrument will abort the inspection process. 
• REVIEW REMARKS. Enter Y/N.
• IN COMPLIANCE. Enter Y/N to state whether the instrument complies or does not comply with the requirements of Chapter 11D-8, FAC. If the instrument does not comply with Chapter 11D-8, FAC, remove the instrument from service and notify the Department Inspector.

6. The results of the Agency Inspection must be recorded on FDLE/ATP Form 40 Agency Inspection Report – Intoxilyzer 8000. 

7. For regulatory and administrative purposes only, the results of the agency inspection must be made electronically available to the Department within five (5) days of completing the inspection. 

Failure of the agency inspector to comply with these steps can result in suppression of breath results in your DUI case. Suppression often leads to reduced charges or, sometimes, to cases being completely dropped.