DUI Breath Test
Many people believe that if they blow over the legal limit of .08 that they will not win their DUI case. The truth is that many of these cases are dismissed before trial or reduced to reckless driving during plea bargaining so the DUI conviction can be avoided.
Click here to read more about our Recent Case Results in DUI Breath Test Cases.
Fighting to exclude the breath test results are important because the results from this "mystical machine" remain the prosecutor's most persuasive piece of evidence. Your best chance at winning a breath test case often requires retaining an experienced attorney focused on these difficult cases.
Hillsborough County uses the same 5 or 6 machines for all tests. The same breath test operators administer the test to subjects. The same agency inspector maintains the machines. Your attorney needs to be familiar with the Intoxilyzer 8000 machines used in Hillsborough County at the Central Breath Testing unit at the Orient Road Jail.
Recent statistics released by the Tampa Police Department show that after a TPD arrest for DUI, nearly half of those arrested submit to a breath test on the Intoxilyzer 8000. In 2016, for example, 1,058 people submitted to a breath test. Of those, 34 people blew under the legal limit of .08 which is 3.2%. For individuals that submitted to the breath test and blew over the legal limit, the following BAC range in TPD cases was reported:
- .080-.149 at 21.5%
- .150-.199 at 17.3%
- .200-.249 at 7.4%
- .250-.299 at 2.5%
- .300 or over at .04%
Attorneys for the DUI Breath Test in Tampa, FL
At the Sammis Law Firm, we take a scholarly approach to attacking the Intoxilyzer 8000, which is the breath test machine currently used statewide in Florida. This machine has serious flaws which can only be truly understood by looking at the "source code" of the machine which the manufacturer has refused to release.
The most common way to get the breath test results excluded at trial is to show that the machine is not in substantial compliance with administrative rules regarding monthly or yearly inspection of the machines.
Call us to discuss your breath test case and ways to fight to have the reading excluded at trial. Call 813-250-0500 to speak with an experienced criminal defense attorney at the Sammis Law Firm in Tampa, FL.
DUI Breath Test and Problems with the Intoxilyzer 8000
- The Common Factual Issues Leading to Challenges Under Florida Law
- Problems with the Breath Test
- Attacking the Breath Test Machines in Hillsborough County
- Twenty Minute Observation Period
- Problem with the Breath Test Technician
- Problems with the Intoxilyzer 8000
- FDLE Acknowledges Glitches in the Machine
- How the Inability to Measure Breath Test Volume Makes the Results Unreliable
- Due Process Requires Disclosure of the Source Code
- Reasons Why Production of the Source Code is Necessary
- Resources for Contesting DUI Cases Involving a Breath Test Readings
- DUI Attorneys Challenging Breath Tests in DUI Cases
The most common factual issues leading to challenges to the breath test under Florida law include:
The breath test was given prior to the driver being arrested for DUI;
The driver took the breath test without the arresting officer reading the Implied Consent Warning;
The driver is advised of the Implied Consent Warning but does not understand it before taking the breath test;
The arresting officer fails to read Miranda;
The driver invokes his right to Miranda;
The driver asks for an attorney before deciding whether to take the breath test;
The Intoxilyzer 8000 was not in substantial compliance for any of the following reasons;
- The Agency Inspector didn't report the results of the agency inspection because the inspector backspaced through the exception or error messages during the Alcohol Free / Mouth Alcohol test or during the Interferent Detect test;
- The first two breath sample readings are not within .02 agreement;
- The driver was told to blow into the machine until told to stop;
- The first two samples did not occur within 15 minutes of each other;
- The driver was wearing dentures which may have caused a high breath test reading;
- Some unauthorized person entered the breath testing room;
- The law enforcement officer failed to follow the 20-minute observation rule;
- The agency inspector used tap water instead of distilled water.
Problems with breath testing on the Intoxilyzer 8000 used in Hillsborough County, FL, can include:
Problems with properly calibrating the Intoxilyzer 8000 breath test machines;
Problems with burping or belching during the 20 minute period before taking the breath test;
A medical condition that cause a false high reading, including acid reflux or Gastro Esphageal Reflux Disorder (GERD);
Inaccurately high readings caused by alcohol being trapped in the mouth because of dentures or dental work;
Grossly inaccurate readings when the person taking the breath test has a body temperature that is slightly higher than normal which can be caused by a fever or cold or even during certain stages of a woman's menstrual cycle; and
Differences in the subjects lung function caused by disease or age.
The attorneys at the Sammis Law Firm have been involved in litigation to throw out the breath test readings is numerous cases in Hillsborough County, FL. Those motions have included:
Motion for Production of the Source Code or in the Alternative Motion for Exclusion of Breath Test Results;
Motion to Suppress the Breath Test Intoxilyzer Results Because of the Failure of the State of Florida to Release the Source Code;
The legality of the promulgation of the FDLE rules pertaining to the Intoxilyzer 8000 and its use in the State of Florida including:
- Motion for Inspection giving the right to inspect the interior, electrical and computer components of the Intoxilyzer 8000, as well as the software and source code for the computer program used in the operation of the instrument and the instruments qualitative and quantitative analysis of and calculations of breath alcohol content to ensure that it works in a scientific manner; and
- Whether the FDLE Rules constitute an invalid exercise of delegated legislative authority under Chapter 120 of the Florida Administrative Act;
- Whether the FDLE Rules were properly promulgated;
- Whether the FDLE Rules are scientifically sufficient to ensure reliability;
- Whether the FDLE made "substantial modifications" to the Intoxilyzer 8000;
- Whether it is an approved machine under FDLE rules.
Motion to Suppress (Throw Out) the Breath Test Machine Because the Intoxilyer 8000 is not an "approved machine" under Florida law because the breath test was not actually approved since it was not in compliance with the FDLE Rules.
Many of these motions have been successful in counties throughout Florida including Sarasota, Orlando and Seminole, Lake and Monroe County, Florida. Many say it is only a matter of time before judges in Hillsborough County, Florida, take similar positions on the Breath Test Machine or Intoxilyzer 8000 used in this county.
Contact a DUI attorney in Tampa at the Sammis Law Firm to fight your drunk driving case in Hillsborough County, FL. Call 813-250-0500 to discuss the particular facts of your case directly with a criminal defense attorney.
Did you know that Rule 11D-8.007 of Florida's Administrative requires that before the breath test is administered, the arresting officer (or another person designated for this job) "shall reasonably ensure" that the person getting ready to take the breath test has "not taken anything by mouth or has not regurgitated for at least 20 minutes before administering the test."
This rule must be strictly followed before the results of the breath test can be admitted at trial. How can we prove whether the officer actually watched you during this period? Find out more about how these innovate motions to suppress the breath test results might help you win your DUI case in Tampa, FL. Click here for the Article on Breath Test 20 Minute Observation Rule.
Under the Rule 14 enacted by the Florida Department of Law Enforcement (FDLE), the breath test technician or law enforcement officer has wide discretion in administering the breath test. The breath test technician can influence the reading, often causing a false high reading simply by telling the person taking the test to blow as much air as they possibly can.
In fact, many breath test technicians will testify that they were specifically trained to encourage the subject to blow as much air as possible into the machine during each attempt.
The reason this advice is wrong and can lead to a false high reading is because the longer one blows into the machine, the higher the breath alcohol reading (BAC). The machine only requires a certain level of air which is typically far less than a person can blow if instructed to keep blowing as long as you can.
The statistical data compiled by FDLE for the Intoxilyzer 8000 tests that have occurred on subjects throughout the state show that women charged with DUI typically blow less air into the machine because their lung capacity is smaller than a man's lung capacity.
Likewise, if the person taking the test is older (particularly over the age of 65) the statistics show that the subject blows less air into the machine. Nevertheless, encouraging the subject to blow more air than is required can greatly affect the breath test reading especially for individuals with a smaller lung capacity.
One DUI expert, A.W. Jones, on the general issues surrounding the longer, harder blow explained the phenomenon this way:
The subject’s manner and mode of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the resulting exhalation. Hyperventilation lowers the breath alcohol concentration by as much as 20% compared with a single moderate inhalation and forced exhalation used as control tests. Holding breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by 15%.
JONES, A. W., "Blood Alcohol Concentration, Measures of." Encyclopedia of Drugs, Alcohol, and Addictive Behavior. The Gale Group Inc. 2001. Encyclopedia.com. 3 Dec. 2009.
Throughout the State of Florida, DUI defense attorneys are demanding that the State of Florida provide the source code or the software program approved for use in 11D-8.003 along with the production of the source code or the software of the Intoxilyzer 8000 used in this case.
Without the production of the source code, the Intoxilyzer 8000 machine is no more than a "mystical machine" used to establish the Defendant's guilt. See State v. Muldowny, 871 So.2d 911 (Florida 5th DCA 2004).
The FDLE has not made a request of C.M.I. to produce the source code for its inspection. However, the purchase agreement between the State of Florida and C.M.I. regarding the Intoxilyzer 8000 provide that the State of Florida owns the version of the source code and software for the Intoxilyzer 8000 that was developed specifically for Florida.
Representatives for C.M.I. have stated that the source code consists of approximately 50,000 lines of computer code written in assembly language. Without the source code, the Defendant is unable to question and test the accuracy of the operations of the Intoxilyzer 8000 as well as the "fail-safe" provisions in the computer program. Without this information, the Defendant's due process rights are violated because he is not given a sufficient opportunity to question the test results.
The Intoxilyzer 8000, in order to produce a breath alcohol level reading, utilizes a computer program, versions of which range from 8100.08 to 8100.27. One of the machines used in central booking at the Hillsborough County Sheriff's Office is 80-003388 which contains software version 8100.27.
The manufacturer of the machine alleges that certain "fail-safe" procedures were designed to flag malfunctions of the Intoxilyzer 8000, which are contained in and performed by the computer program contained within the machine. Without this computer program, the machine will not operate.
The FDLE allegedly approved software versions 8100.09 and 8100.10 in 2002 version of FDLE Rule 11D-8.003. Since that time, there have been approximately 17 subsequent software revisions, one of which is the software version 8100.27, contained within the machine in Tampa found at central booking of the Hillsborough County Sheriff's Office.
In a letter dated October 5, 2006, the FDLE admitted that it has discovered software flaws that allowed scientifically unreliable breath test results to be reported by the machine as scientifically reliable. The software flaws result from the Intoxilyzer 8000's ability to measure breath volume on any individual test in which a person blows into the device.
Many criminal defense attorneys involved in the DUI litigation for the source code in Florida argue that the various inspections performed on the machines are useless and irrelevant because the machine is not designed to measure the accuracy of the breath volume when simulators are used to test the accuracy of the machine.
One former FDLE Inspector, Roger Skipper (now the agency inspector for the breath test machines maintained by the Hillsborough County Sheriff's Office), had admitted in other litigation that the FDLE has made no attempt to use independent instrumentation to determine the accuracy of the value provided on any individual breath test administered by using a person's breath versus a simulator.
The former FDLE Commissioner Guy Tunnell, in a letter to the President of the Florida Prosecuting Attorney's Association, dated August 11, 2005, stated:
The Intoxilyzer 8000 requires minimum time, slope, flow and volume 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 the 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.
This explanation for these scientifically unreliable results contradicts actual test results that show that the missing instruction in the software was not the reason for the machine's inability to properly calculate the breath volume on a given sample. Instead, there is a computer glitch within the FDLE software which can the pinpointed without looking at the source code for the software contained in the machine.
One of the safeguards of the machine is the ability to record the volume of each breath. When that breath sample is less than 1.1 liters, the machine should report to the breath test operator the warning "volume not met."
If that warning is not provided, then the machine should have calculated that the sample volume is greater than 1.1 liters. However, no methodology used by FDLE can verify the breath volume is accurate for any given breath sample.
For example, by inspecting the records pertaining to the Intoxilyzer 8000, experts have now established yet another software flaw that allows the machine to produce a breath alcohol level when the machine reports that no breath volume was submitted for analysis.
The Intoxilyzer 8000 Instrument Specification Sheets provided by C.M.I., the manufacturer of the Intoxilyzer 8000, C.M.I. has admitted that volume measurements accuracies on the machine are plus or minus 10%.
The FDLE and C.M.I. have established an arbitrary and capricious requirement of a breath volume of 1.1 liters of breath in order to have a valid sample. The machine has undergone numerous software changes which directly and indirectly affect the analytical portions of the software that has been modified.
Despite the changes to the software, FDLE has not, as required by C.M.I., had the Intoxilyzer 8000 machine re-calibrated. Without that re-calibration, there is no assurance that the breath test volumes for the breath test device are accurate.
Due process requires that the person accused have a "sufficient opportunity to question the rest results" which include making available for testing the breath test machine itself as well as its fail-safe procedures." Houser v. State, 474 So.2d 1193 (Fla. 1985); Cloe v. State, 613 So.2d 70 (Fla. 4th DCA 1993).
In Houser v. State, supra, the Florida Supreme Court stated that due process is met when:
The breath testing machine and calibrating records and samples were available to impeach the machine's reliability, and the defendant had the right to cross-examine the machine operator to expose potential errors in the administration of the test.
Id. at 1195. Furthermore, the Florida Supreme Court in Houser also empowered the defendant to obtain discovery concerning the devices used in testing pursuant to Florida Statutes Section 316.1932(1)(f)(4).
In Cloe v. State, supra, the Fourth District Court of Appeals found that due process was satisfied when "the machine could be tested, the test results were available, and the 'fail safe' procedures could be questioned."
DUI defense attorneys throughout the State of Florida are fighting for the source code of the Intoxilyzer 8000 because without it, the Defendant cannot determine the following:
How the software in a particular intoxilyzer varies or was modified from the original software versions approved by the FDLE in 2002.
Whether those modifications caused the approved software to have additional flaws or glitches;
Whether the modification impact the reliability or operation of the Intoxilyzer 8000;
Whether the software program itself gives a scientifically reliable result on a human breath sample as opposed to a simulator;
Whether the changes in the various versions of the code are "substantial;"
How the "fail-safe" procedures work; and
The extent that known and unknown flaws in the program affect the accuracy of the test results.
Suppressing the Breath Test if it was Coerced
What happens if the officer coerces you into submitting to a breath test? If the test was coerced, then the criminal defense attorney should file a motion to suppress the results of the case.
- Bullock v. State, 19 Fla. L. Weekly Supp. 329 (Circuit Court Brevard County 11/17/11) - when the defendant, who was in custody at the police station, was repeatedly asked to take the urine test after the breath test indicated no breath alcohol the defendant was finally told that if he did not submit to a urine test, the police might take him to the hospital for a blood draw, request for urine test was coercive and implied authority the police did not possess. Therefore, the trial error when denying the motion to suppress the result of the urine test since the defendant's decision to submit was not voluntary.
- State v. Barto, 20 Fla. L. Weekly Supp. 162 B (County Court for Brevard County 11/5/12) - the court granted a motion to suppress the test results when a trooper ignored defendant’s request to use the restroom before and during field sobriety exercises and during transportation to the state, and trooper’s responses to defendant’s requests created the impression that the fastest way to gain access to a restroom was by submitting to a breath test, defendant did not voluntarily consent to field sobriety exercises or breath test.
- State v. Bello, (Miami-Dade County Criminal Traffic Division Case No. 4187-XDK and 9425-GBB 12/13/2010) - the beat test results were suppressed when the officer gave an erroneous opinion or statement that caused the driver to believe she would not be able to obtain a hardship license to drive to work for 12 months if she refused.)
Expert Testimony from Harley R. Myler on Source Code for the Intoxilyzer 8000 - Read the request made to C.M.I., their response, and an affidavit from an expert witness explaining why disclosure of the source code is relevant and necessary to contest the breath test readings.
Guilty By Machine: The Problem of Source Code Discovery in Florida DUI Prosecutions - A must read for anyone interest in the current litigation. Article published in the Florida Law Review by Charles Short.
Recent DUI statistics collected in Florida show that in 2009 the State of Florida conducted 49,783 breath tests using the Intoxilyzer 8000. Of those breath tests, the average breath alcohol concentration reading was 0.147.
More than 18% of the tests show a breath alcohol reading of less than 0.08. Approximately, 82% of the breath test readings were between 0.08 and 0.20. The remaining 23% of the breath tests showed a reading of over .20. See Intoxilyzer 8000 Subject Tests Statistical Data Review Summary - 2009 Yearly Totals.
It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery, that inhales breath samples and that produces a report specifying a degree of intoxication. State v. Muldowney, 871 So.2d 911, 913 (Fla. 5th DCA 2004).
When we represent a client with a breath test reading on the Intoxilyzer 8000, we conduct a full audit and look at all of the records on the Intoxilyzer 8000 used in your case. Those records are uploaded on the FDLE website. By reviewing the records, we can often find problems that show the Intoxilyzer 8000 was not in substantial compliance with the statutory and administrative rules.
Contact our attorneys to find out more about how we represent our clients charged with DUI after a high breath test reading. If you were arrested for DUI in Tampa, Hillsborough County, Florida, and submitted to a breath test, contact an experienced DUI Attorney at the Sammis Law Firm to discuss your case.
We take a scholarly approach to fighting for the exclusion of the breath test results. Call 813-250-0500 to talk with an attorney today.
This article was last updated on Friday, January 5, 2018.