Lack of Substantial Compliance
When fighting a DUI breath test case the attorney has to look carefully at the records related to the particular Intoxilyzer 8000 instrument used in that case. Each instrument has a serial number which can be found on the breath test results provided to the client at the jail or during the course of discovery.
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The FDLE website provides links to a tremendous amount of information about all breath test samples taken on that machine, annual departmental inspections and monthly agency inspections, and field notes and other correspondence showing any irregularities that were observed.
Often the documents are "cryptic" in the sense that they attempt to explain an irregularity in a way that suggests the problem does not affect the accuracy and reliability of the instrument. DUI attorneys in Florida must critically analyze this information to determine whether any problem with the machine or the maintenance practices used on that particular serious number warrant filing and litigating a "Motion to Suppress or Exclude the Breath Test Result for Lack of Substantial Compliance."
Motion to Suppress or Exclude Breath Test Results for
Lack of Substantial Compliance
COMES NOW the Defendant, XXXX XXXXX, by and through the undersigned attorney pursuant to the Florida Rules of Criminal Procedure 3.190(h), and hereby states the following:
- The Defendant is charged with violating Florida Statute 316.193-2a, Driving Under the Influence.
- The Defendant was arrested on __[date and time]___ by ___[arresting officer] at ____[address of arrest]___.
- After the arrest, the arresting officer requested that Defendant submit to a breath test machine, the Intoxilyzer 8000, serial number 80-00XXXX.
- The breath test results for .XXX and .XXX.
- The Florida Department of Law Enforcement (FDLE) rules governing the Intoxilyzer 8000 testing were promulgated by FDLE. These rules are known as the "Implied Consent Program" under Chapter 11D-8.
- The Intoxilyzer 8000 used in this case, as well as all breathalyzer instruments in the State of Florida, are required to be subjected to monthly inspections done by the law enforcement agency inspectors. Additionally, annual inspections are required to be performed by FDLE Departmental Inspectors.
- In additional to the monthly agency inspections and the annual departmental inspection, an additional departmental inspection is required after the instrument is "returned" from a repair facility.
- The Intoxilyzer 8000 used in this case was not in compliance with Florida Administrative Code 11-D8 when the Department Inspector, ___[name]___, did an annual inspection on ___[date]___ and the instrument was removed from service. [Alternatively - "The Intoxilyzer 8000 used in this case was not in compliance when it was removed from service because __[state reason it was removed from service].
- The instrument was sent to Enforcement Electronics Services, Inc., 3705 Century Blvd., Suite 2, Lakeland, FL 33811-1395.
- The repairs were made sometime between __[date]__ and ___[date]___.
- On ___[date]___, while the instrument was still at the Enforcment Electronics facility in Lakeland, FL, the FDLE Departmental Inspector did another department inspection.
- [Add discussion about the number of log ins]
- [If multiple log in attempts were made prior to the passed inspection then it calls into question whether the departmental inspector turned off the instrument prior to completing the first test and whether the passed inspection was actually the second or subsequent inspection. If the instrument were turned off, the plug was pulled, the data cord was pulled, or some other procedure was used to dump any data showing the failed inspection, then the machine would not be in substantial compliance because FAC rules require certain documentation when a departmental inspection fails. Such documentation was not written in this case. Specifically, the departmental inspector is required to document the failure in his inspection report.]
- The Instrument was returned to ___[agency]___ on __[date]___.
- Agency inspector, ___[name]___, performed an agency inspection on ___[date]___.
- The agency inspector is then required to perform an agency inspection prior to returning the instrument to service pursuant to Rule 11D-8.006.
- Both Rule 11D-8.006 (governing agency inspections) and 11D-8.004 (governing departmental inspections) require a new inspection after an instrument is "returned" from a repair facilit
Memorandum of Law
The implied consent law makes the Florida Department of Law Enforcement (FDLE) responsible for the regulation of the inspection, operation and registration of the breath test instruments utilized in prosecutions for Driving Under the Influence (DUI) of alcohol or controlled substances. Florida Statute Section 316.1932(1)(a)(2). The statute requires substantial compliance with these regulations in order for the results of the breath test to be admissible.
In order for an analysis of a person's breath to be considered valid under this statute, the testing must be performed in substantial compliance with the Florida Administrative Rules. Any substantial difference between the approved rules and the actual testing procedures in an individual case would render the test result invalid and inadmissible at trial.
Florida Administrative Codes, Chapter 11-D-8.004(2) provides in part as follows: "Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use."
Florida Administrative Codes, Chapter 11-D-8.002(13), provides as follows: "Authorized Repair Facility - the Department, the breath test instrument manufacturer, an entity authorized by the breath test instrument manufacturer to service and repair such breath test instrument.
Under Chapter 11-D-8.002(13), FDLE departmental inspectors can be considered authorized to repair the machine.
Rule 11D-8.003(4) states: A Departmental Inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy, and reliability of an evidentiary breath test instrument.
Rule 11D-8.004(2) provides: "Registered breath test instruments shall be inspected by the Department at least once each calendar year, and must be accessible to the Department for inspection. Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use. The inspection validates the instrument's approval for evidentiary use.
In this case, the departmental inspection that occurred on ___[date]___ becomes the controlling document to satisfy the requirements for Rule 11D-8.004(2) "Annual Inspection." That departmental inspection is needed to satisfy the FAC requirement that the instrument be inspected by the Department at least once each calendar year for the instrument to be in substantial compliance.
The Intoxilyzer 8000 instrument used in this case was not in substantial compliance with Rule 11D-8.004(2) since the departmental inspection was conducted at Enforcement Electronics and the repair was not performed after the Intoxilyzer was "returned from repair" to the Hillsborough County Sheriff's Office.
Since the Departmental Inspection on ___[date]___ was not conducted after the instrument was "returned from repair" the prosecutor for the State Attorney's Office cannot lay the proper predicate to show that Rule for an annual inspection under 11D-8.004.
Lack of Compliance with Rules for the Intoxilyzer 8000
Because of the failure to substantially comply with the FDLE rules, the breath test results in this case were obtained in violation of the Defendant's due process rights, rights to be protected against unreasonable search and seizure, and right to privacy as protected by the Fourth, Fifth, and Fourteenth Amendment as guaranteed by the United States Constitution and Article One, Section 9, 12, and 23 of the Florida Constitution.
Therefore, the Defendant respectfully request that this Order issue an order that suppresses or excludes the breath test results obtained in this case from trial.
The attorneys at the Sammis Law Firm strive to stay current on all issues affecting the Intoxilyzer 8000 in the State of Florida. We focus on DUI cases in Hillsborough County, FL, and the surrounding areas. We fight breath test cases after a DUI arrest in Tampa, FL.
Click here to learn more about how to use the Intoxilyzer 8000 records on the FDLE website to find out whether the administrative rules were followed during the yearly and monthly inspections.
This article was last updated on Friday, January 5, 2018.