Form 39 – Agency Inspection Procedures

In Florida, the procedures that an agency inspector must use when conducting an agency inspection are found in FDLE/ATP Form 39, which were last revised in August of 2005.

A DUI defense attorney in Tampa, FL, for a breath test case will carefully look at your subject test results, and perform an audit on the instrument used in your case.

Your attorney will pay particular attention to the most recent monthly inspection that occurred prior to your subject test. Your attorney will also look at the monthly inspection that occurred just after your breath test.

We created this checklist of Form 30 violations that can be raised during the formal review hearing while questioning the agency inspector, or during a pretrial motion to suppress the breath test because the Intoxilyzer 8000 was out of substantial compliance with the administrative rules.

Agency Inspection Procedures on Florida’s Intoxilyzer 8000

If your attorney can find any problem with the monthly inspection, then your attorney can file a motion to suppress the breath test reading because of the lack of substantial compliance with the administrative rules.

If you need to speak to an attorney for a breath test DUI case in Tampa, FL, or the surrounding areas in the Tampa Bay area, then contact Sammis Law Firm.

We have offices conveniently located in Tampa in Hillsborough County, New Port Richey in Pasco County, Clearwater in Pinellas County and Winter Park in Orange County, FL.

Call 813-250-0500 today.

FDLE/ATP Form 39 Inspection Audit Checklist

(Intoxilyzer 8000 — Ref. Rule 11D-8.006 & 11D-8.019, F.A.C.)

When auditing monthly agency inspections (Form 40 electronic data or PDF) to prepare for a formal review hearing or motion to suppress, cross-reference the report against the mandatory directives in Form 39 using the following checklist:

1. Standard Concentration Tolerance Ranges (Section 5)

Verify that all three (3) analyses for each standard fall strictly within Rule 11D-8.002 acceptable ranges:

• [ ] 0.05 g/210L Standard: Must fall between 0.045 and 0.055 g/210L (inclusive).

• [ ] 0.08 g/210L Standard (Wet Bath): Must fall between 0.075 and 0.085 g/210L (inclusive).

• [ ] 0.20 g/210L Standard: Must fall between 0.190 and 0.210 g/210L (inclusive).

• [ ] 0.08 g/210L Dry Gas Standard: Must fall between 0.075 and 0.085 g/210L (inclusive).

• [ ] Post-Inspection Diagnostic: Did the post-inspection diagnostic check register “OK”?

2. The “Repeat Test” Mandates (Section 5 — Fatal Defect Checklist)

• [ ] Presence of Repeat Tests: Does any test line read Test # (Repeat)?

• [ ] Single Repeat Limit: Was the test repeated only once? (Form 39 strictly commands: “Each test may only be repeated once.” Multiple repeated attempts violate the rule).

• [ ] Mandatory Reason in Remarks: If a test was repeated, did the inspector enter the reason when prompted and record the REASON / corrective action in the Remarks section of Form 40?

  • Violation Indicator: Remarks contain only attendance notes (e.g., “Officer X present”) or are left blank.

  • Violation Indicator: No explanation of why the standard failed (e.g., leak, loose hose, temperature drop) or what was done prior to running the repeat test.

3. Compliance Determination, Out-of-Service Rules, and Reporting (Sections 5–7)

• [ ] Improper Compliance Certification: Did the inspector mark the instrument “In Compliance: Yes” when uncorrected out-of-tolerance readings or unrecorded repeats exist?

• [ ] Failure to Remove from Service / Notify FDLE: If the instrument was non-compliant, did the inspector immediately remove it from evidentiary service and notify the Department Inspector? (If an agency continues using an out-of-tolerance machine for subject tests, all subsequent tests are subject to suppression).

• [ ] Form 40 Execution: Were the results formally generated and recorded on FDLE/ATP Form 40?

• [ ] 5-Day Electronic Upload Rule: Were the electronic results transmitted to the Department within five (5) days of completing the inspection? (Compare Inspection Date/Time against the FDLE upload/download timestamp on the public portal).

4. Hardware, Simulator, and Solution Requirements (Sections 1–3)

• [ ] Simulator Quantity Check: Are at least two (2) simulators indicated on the report? (Form 39 requires a minimum of two; using only one violates the mandatory procedure).

• [ ] Warm-Up Period Compliance: Did the inspector allow at least 30 minutes of warm-up prior to the first analysis, or at least 10 minutes after a solution change once the heater light cycled off? (Cross-examine on timeline gaps between machine power-on/login and the first test).

• [ ] Simulator Temperature Verification: Did the simulator maintain an operational temperature of 34°C (± 0.2°C) and an air-leak resistant seal throughout testing?

• [ ] Approved Distilled/Deionized Water & Class A Glassware: Were the Alcohol Free Test and Interferent Detect Test prepared with distilled/deionized water measured with Class A glassware (500 mL water; 3 mL acetone stock solution)?

• [ ] Non-Expired Standards: Are all wet-bath alcohol reference solutions (0.05, 0.08, 0.20 g/210L) and the 0.08 g/210L dry gas cylinder within their stated expiration dates?

• [ ] Approved Source Check: Are all lots from FDLE-approved sources and lots listed on the official FDLE/ATP approved solution registry?

5. Pre-Test and Diagnostic Protocols (Section 5)

• [ ] Pre-Inspection Diagnostic: Did the pre-inspection diagnostic check result in an explicit “OK”? (Any failure aborts the inspection; if bypassed or forced, the inspection is defective).

• [ ] Air Blank Integrity: Did every single air blank read exactly 0.000 g/210L? (Under Form 39, the instrument must abort if an air blank is not 0.000).

• [ ] Subject / Mouth Alcohol Free Test: Did the introduced alcohol-free breath sample produce 0.000 g/210L?

• [ ] Slope Detection: Following mouth rinse, did the mouth alcohol test register SLOPE NOT MET? (If it registered a numerical value or failed to trigger “Slope Not Met,” the slope detector is compromised).

• [ ] Interferent Detection: Did all three (3) analyses of the acetone stock solution register INTERFERENT DETECT? (A numerical reading instead of “INTERFERENT DETECT” indicates a detector failure).

Strict Requirements for the Agency Inspection on the Intoxilyzer 8000

The best ways to understand the rules that apply to the monthly inspections that the agency inspector must perform is to look at the requirements contained in Form 39 which provide:

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

6. 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.

Additional Resources

FDLE/ATP Form 39 on Agency Inspection Procedures – Visit the Florida Department of Law Enforcement (FDLE) website to learn more about the requirement contained in FDLE/ATP Form 39 that applies to Agency Inspection Procedures on the Intoxilyzer 8000, which were last revised in August of 2005. Find a list of the breath test forms for the breath test permit, instrument evaluation procedures, department inspection procedures, operational procedures, the breath alcohol test affidavit, and the agency inspection procedures.