Form 39

Form 39 Retest Violations

In an administrative formal review hearing before the Bureau of Administrative Reviews (BAR), the hearing officer must determine under Section 322.2615(7)(a), Florida Statutes, whether the driver had an unlawful alcohol level of 0.08 or higher.

To establish that predicate without calling a toxicologist, the Department relies on the statutory presumption of reliability under Section 316.1934 and Chapter 11D-8, F.A.C.

When an Agency Inspector (AI) encounters an out-of-tolerance result during a monthly inspection, triggers a repeat test, and fails to record the reason in the Remarks section, the agency inspection fails to substantially comply with FDLE/ATP Form 39.

This invalidates the inspection, destroys the statutory presumption, and provides grounds to invalidate the administrative suspension.

How to Audit the Agency Inspection for the Intoxilyzer 8000

  1. Pull the Agency Inspection Reports:

    • Go to the FDLE/ATP public database (or the agency’s COBRA download history) and pull:

      • The monthly agency inspection report (Form 40) immediately preceding the subject test.

      • The monthly agency inspection report immediately following the subject test.

      • The annual Department Inspection Report (Form 41).

  2. Scan for “Repeat” Line Items:

    • Look specifically at the standard checks: 0.05 g/210L, 0.08 g/210L (wet), 0.20 g/210L, and 0.08 g/210L (dry gas).

    • If any line item reads Test # (Repeat), stop immediately: an out-of-tolerance reading occurred.

  3. Audit Against Permissible Tolerances:

    • 0.05 Standard: Acceptable range is 0.045 to 0.055 g/210L.

    • 0.08 Standards (Wet & Dry): Acceptable range is 0.075 to 0.085 g/210L.

    • 0.20 Standard: Acceptable range is 0.190 to 0.210 g/210L.

    • Example: A reading of 0.074 is below the minimum threshold of 0.075 and triggers an automatic prompt to repeat.

  4. Cross-Check Form 39, Section 5 Against the Remarks:

    • Form 39 governs the agency inspection procedure and explicitly commands:

      “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.”

    • Review the Remarks section at the bottom of the Form 40.

    • If the Remarks section contains only boilerplate officer notes (e.g., “AI B. KROME #263389 PRESENT FOR INSPECTION”) and omits the mandatory explanation for why the test was repeated, the inspection violates Form 39 on its face.

  5. Issue a Subpoena for the Agency Inspector:

    • Do not rely on written documents alone. Subpoena the Agency Inspector for the BAR formal review hearing under Section 322.2615(6)(b).

Cross-Examination Script: Questioning the Agency Inspector

The goal of this examination is three-fold:

  1. establish that Form 39 is mandatory;
  2. lock the inspector into admitting the first run was out of tolerance and required a repeat; and
  3. force the admission that no reason was recorded, the inspector has no independent recollection, and the machine’s reliability at that moment is unexplained.

Phase 1: Locking in the Out-of-Tolerance Failure

  • Q: Showing you the Agency Inspection Report dated [Date], you conducted this monthly inspection on Intoxilyzer 8000 Serial Number [Number], correct?

  • Q: Directing your attention to the 0.08 wet-bath simulator test: under FDLE rules, what is the acceptable target range for that solution?

    • (Wait for answer: 0.075 to 0.085 g/210L)

  • Q: On Test #1 of that 0.08 solution, what result did the instrument obtain?

    • (Wait for answer: e.g., 0.074 g/210L)

  • Q: 0.074 is below 0.075, isn’t it?

  • Q: That means Test #1 was out of compliance and outside acceptable tolerances, correct?

  • Q: And because it was out of compliance, the Intoxilyzer prompted you on screen to “REPEAT (Y/N)” the test, correct?

  • Q: You selected “Yes,” and that is why the line item below it reads 0.08 g/210L Test # (Repeat), correct?

Phase 2: Pinning Down Zero Independent Recollection

  • Q: Why did the 0.08 test came back at 0.074?

  • Q: Don’t you need to know the REASON the machine was outside of tolerance before retesting?

  • Q: Are their any documents or other evidence you can look at that might refresh your recollection about why the 0.08 test came back at 0.074?
  • Q: What was the REASON that you decided to retest?

  • Q: Did you tighten a loose hose connection?

  • Q: Did you wait for the simulator solution to finish heating to 34°C?

  • Q: Did you check the O-ring for an air leak?

  • Q: Did you simply press repeat without doing anything to see if the machine would pass on a second try?

  • Q: There is no official record, maintenance log, or document that records what, if anything, you did before running that repeat test, correct?

  • Q: And sitting here today, you cannot testify from personal memory what caused the out-of-tolerance failure or what corrective action was taken, correct?

Phase 3: Establishing the Mandatory Nature of Form 39

  • Q: Officer/Inspector, you are a certified Agency Inspector through the Florida Department of Law Enforcement, correct?

  • Q: In order to maintain that permit, you were trained on FDLE/ATP Form 39, titled “Agency Inspection Procedures – Intoxilyzer 8000,” correct?

  • Q: Form 39 is incorporated by reference into Chapter 11D-8 of the Florida Administrative Code, isn’t that right?

  • Q: When conducting a monthly agency inspection, you are required to strictly follow each step set forth in Form 39, correct?

Phase 4: Exposing the Form 39 Violation

  • Q: Handing you FDLE/ATP Form 39, please look at Section 5, lines 3 through 6.

  • Q: Would you read aloud the sentence beginning with “If a test must be repeated…”? (Witness reads: “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.”)

  • Q: That is an explicit requirement of FDLE inspection procedures, correct?

  • Q: Now look at the Remarks section of your Form 40 Agency Inspection Report.

  • Q: Did you record the reason for repeating that out-of-tolerance test in the Remarks section?

  • Q: In fact, your Remarks section mentions only who was present, correct?

  • Q: It contains zero explanation for why Test #1 failed or why it had to be repeated, correct?

Closing Motion to the Hearing Officer at the Formal Review Hearing

After concluding the inspector’s testimony, make the following oral motion on the record:

“Hearing Officer, we move to invalidate the administrative suspension of the driver’s license under Section 322.2615, Florida Statutes.

To sustain a suspension based on an unlawful breath-alcohol level, the Department bears the burden of establishing substantial compliance with Chapter 11D-8, Florida Administrative Code. Under Form 39, Section 5, an Agency Inspector is mandated to record the specific reason for any repeated test in the Remarks section of Form 40.

The inspection report in this case reflects that the 0.08 g/210L standard failed and came back out of tolerance at 0.074. The inspector repeated the test, failed to record the reason in the Remarks section as required by rule, and admitted under oath today that she did not know she had to record it, does not remember why it failed, and has no record of what corrective measures were taken.

This is not a harmless clerical oversight; it involves an out-of-tolerance chemical standard where the integrity of the instrument is unexplained. Because the Department cannot establish substantial compliance with Chapter 11D-8 or Form 39, the breath test results are inadmissible, the statutory presumption under Section 316.1934 does not apply, and there is insufficient competent, substantial evidence of an unlawful breath-alcohol level. We respectfully request an order invalidating the suspension.”

This article was last updated on Wednesday, October 14, 2026.