Volume Not Met (VNM) Flag on Florida’s Intoxilyzer 8000
Recently I’ve seen an unusually high number of cases in which someone blows into the Intoxilyzer 8000 after a DUI arrest here in Tampa, Hillsborough County, FL, with a “VNM” flag. In many of these cases, the person arrested for DUI will report that they tried to blow into the machine as hard as they could, but the breath test technician keep telling them that they were not blowing hard enough.
After trying several times, the breath test technician wrote the person up as a “refusal” even through the person had attempted to provide a sufficient sample.
In many of these cases, the criminal defense attorney should file a motion to suppress any mention of the alleged “refusal” because the failure to provide a sufficient sample has nothing to do with the subject faking it, and everything to do with the machine not working properly.
The DUI Machine Refusals
“VNM” stands for “volume not met.” If the Intoxilyzer 8000 reading indicates that the individual failed to give two adequate breath samples because they did not blow enough air into the machine, then the breath test technician will say that the person “refused” to take the breath test. DUI Attorneys call these cases the “Machine Refusals.”
In these police reports, the breath test technicians and arresting officer will often go to great lengths to accuse the subject of purposely refusing to blow into the machine. In other words, they argue that the individual was faking it by pretending to blow without putting enough air into the machine.
Florida’s Intoxilyzer 8000, the Flow Sensor and the “R” Value
To get a valid breath sample, the subject must blow into the machine for at least one second and must blow at least 1.1 liters of air into the machine. The air blown into the machine passes through a “flow sensor” which measures the amount of air blown into the machine. Over time, the flow sensor starts to break down and the “R” Value starts to drop below that critical measurement of 100.
At some point, an usually high number of VNM flags start to appear as the subjects with a small lung capacity or health problems (typically women and the elderly) are unable to submit a sufficient sample.
As Laura Barfield testified in a DUI hearing in Clearwater, Pinellas County in 2008, “If you don’t provide a sample for at least one second, we can’t give you a number at all…. And then after you give me the one second, well then you have to give me at least 1.1 liters [of air], because the instrument will not look for level slopes, as the software is written now, until you give it 1.1 liters [of air]. So after it gets 1.1 liters, as measured by the flow sensor, it will then look at plateau monitoring….”
So the question becomes, just how does the flow sensor measure whether 1.1 liters of air have been provided? The attorney representing a client with a “VNM” flag should be aware that the machines hardware and software could be at fault. The Florida Department of Law Enforcement (FDLE) and the officials with the local law enforcement agency that maintains the individual machine will go to great efforts to hide this problem so the criminal defense attorney has to do some digging.
The History of the Florida Intoxilyzer and the Volume Component
Before we had the Intoxilyzer 8000, Florida used the Intoxilyzer 5000 from 1983 until 2004. In the Intoxilyzer 5000 volume was not a key component in determining the accuracy and reliability of the result. Instead, an adequate sample were time (6 seconds), pressure and slope. When the Intoxilyzer 8000 introduced in 2004, criminal defense attorneys slowly began to find out just how important the volume component had become.
As FDLE Commissioner, Guy Tunnell, explained in the often quoted letter to the President of the Florida Prosecuting Attorney’s Association on August 11, 2005:
The Intoxilyzer 8000 requires minimum time (one second), slope, flow, and volume (1.1 liter) components. Only when those minimally acceptable requirements are met, will the breath sample be scientifically reliable and the quantitative result accurately reflect the alcohol concentration circulating in a person’s body… Volume is a key component in establishing reliability. Where a breath sample does not meet minimum volume requirements, the instrument cannot determine if there are interferents or mouth alcohol present, and cannot ensure that a deep lung breath sample has been obtained.
The Instrument Specification Sheet for the Intoxilyzer 8000 provided by the company that manufactures the machine, C.M.I., Inc., has admitted that the way the machine measures volume can be off by plus or minus 10%.
The Minimum Requirement of 1.1 Liters of Air is Arbitrary
Not all states that use the Intoxilyzer 8000 machine use software that is configured to require that minimum volume requirement of 1.1 liters of air. Some states require a lower or higher threshold volume reading. The criteria used to select different minimum volume levels used by different states remains a mystery, although its selection may be somewhat arbitrary.
When a DUI Refusal is Not Really a Refusal
In some cases, the subject tested may not be able to blow a sufficient sample because of a flaw with the flow sensor in the individual Intoxilyzer 8000 machine. Stephen Daniels, with DUI undo Consultants, LLC, discovered through looking at various records that the flow sensor generates a number called the “R” Value.
When the “R” Value drops below a certain level (thought to be around 100) then it is an indication that the flow sensor is not working properly and the flow sensor makes it more difficult for an individual to blow at least 1.1 liters of air into the machine.
Update on December 15, 2013: The Instrument Processing Sheets now require a quality control review that provides the R-Value. It also calls for a “flow calibration.” The section of the form related to the flow calibration provides:
__ Flow Calibration N/A
__ Flow Calibration Complete
__ Flow Column # __
__ 15L/min – 53mm
__ Post Calibration Verification (L/s)
Flow Column# __
32mm __ (.139-.169)
36 mm __ (.156-.190)
53mm __ (.228- .278)
103mm __ (.447-.547)
FDLE’s Departmental Inspection Form Used to Record the “R” Value
The original rules for the departmental inspectors who works for the FDLE required the “R” Value reading to recorded on the department inspection checklist. The departmental inspectors were required to test for and record on the forms the “R” Value of each machine. Through public records requests, Stephen Daniels discovered an internal memo written by Laura Barfield (the head of FDLE’s alcohol testing program) dated December 11, 2007, that changed the form used by departmental inspectors in order to delete any reference to the “R” Value.
FDLE Switched to “Off the Record” Recording of “R” Value
Instead, Laura Barfield required the departmental inspectors to keep a separate “off the record” notation of the “R” Value on each Intoxilyzer 8000 during the yearly inspections (or after the machines were returned from repairs). So even through the information was no longer being reported to the public, Laura Barfield wanted some secret access to that information for some reason that has only become obvious after reviewing internal e-mails between FDLE, the departmental inspectors and the local law enforcement agencies that maintain the machines.
When the Intoxilyzer 8000 Becomes Too Hard to Blow Into
Stephen Daniels, an expert witness on the Intoxilyzer used by DUI Defense Attorneys through the State of Florida, used public records requests to obtain e-mails from FDLE departmental inspectors discussing a similar problem with a breath test machine from Okaloosa County. In an e-mail dated August 11, 2009, FDLE department inspector, Maggie Geddings, directed the Okalossa County Sheriff’s Office to send in their Intoxilyzer 8000 machine with serial number 80-000739 for immediate repair because there were too many flags for VNM (or “volume not met” readings in which the subject blew less than the required 1.1 liters of air).
Maggie Geddings also noted that the “R” Value for the flow meter on the machine was low because it was reading only “88.” A few weeks later, Maggie Geddings sent a more urgent message that said: “TAKE THIS ONE OUT OF SERVICE LIKE I ASKED YOU TO in a previous e-mail! There are too many VNM’s and any refusals could be overturned because it is too hard to blow into.”
Testimony from Roger Skipper on the “R” Value
Roger Skipper is a departmental inspector with the FDLE. In a transcript of deposition testimony from Roger Skipper taken on November 12, 2010, in an Orange County DUI case, he testified that the knows that the flow sensor “R” Value “…plays a part in measuring the amount of breath volume that is placed into the instrument.” He also confirmed that the flow sensor “R” Value had been reported on the departmental inspector’s field notes before the form was changed. Roger Skipper also testified that he created his own spread sheet to record the “R” Values for the individual machines that he tested.
He testified that he had been looking at “R” Value for those three years “to see if they had a direct relation to whether or not it was difficult to blow a sample, to provide a sample to the instrument.” When the attorney asked, “And if the machine reads volume not met, is there any way of knowing it’s the machine’s flow sensor not working right or the individual not working right, or blowing right?” Roger Skipper answered, “Just from looking at that, no, there’s no way.”
This evidence uncovered by Stephen Daniels suggested an important correlation between the “R” Value and the difficulty blowing a sufficient sample into the machine. The evidence suggested that the lower the “R” Value, the less air the flow sensor was allowing into the test chamber for analysis.
Furthermore, there was a deliberate attempt to hide this problem from the law enforcement agency that maintained the machine, and the defense attorneys that were tasked with representing the subjects accused of DUI after blowing into the machine. In some of those cases, defense attorneys were not given sufficient information to establish that a client’s DUI “refusal” resulted not from some deliberate act on the clients part, but rather because of a faulty flow sensor that need to be replaced.
Leslie Sammis represents individuals charged with DUI refusals and high blows over .08 in Tampa, Hillsborough County, FL. She is particularly interested in special defenses that apply to women charged with DUI, including the high number of “machine refusals” charged against women who typically have a smaller lung capacity then men.
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