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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 during the course of discovery.

The attorney can also find all of the eletronic data for that breath test machine on the FDLE website. 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.

 

Attorney for Compliance Issues on the Florida Intoxilyzer 8000

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."

Problems with these 10-year-old machines are extremely common. Filing the motion alleging the lack of substantial compliance often forces the prosecutor to make an offer to resolve the case and avoid the hearing.

The attorneys at Sammis Law Firm, our Tampa DUI Attorneys are experienced with filing and litigating motions to show a lack of compliance or substantial compliance with the administrative rules. If you were accused of DUI after submitting to a breath test, then contact our attorneys to discuss your case.

Click here to read more about our Recent Case Results in DUI Breathalyzer Cases.

Call 813-250-0500 today.


Examples of Substantial Compliance Problems on the Intoxilyzer 8000

To determine whether substantial compliance issues exist in your breath test case, your attorney needs to obtain all of the discovery and electronic data on the instrument that you tested on. Your attorney needs to also carefully look at the requirements of Form 39 to see if any of the requirements were not met. 

According to the Agency Inspection Procedures in the Form 39 for the Intoxilyzer 8000 in Florida, a lack of substantial compliance can be alleged if any of the following occurred: 

  1. Pre-Inspection Procedures
    1. The agency inspector failed to prepare at least two simulators for use and allow them to warm up for at least thirty minutes prior to the first analysis.
    2. When changing solutions, the agency inspector failed to allow the new solution to warm up for at least ten minutes after the heater light turns off for the first time.
    3. The agency inspector failed to ensure that each simulator maintains an air leak resistant seal and an operational temperature of 34 C (+/- 0.2 C).
    4. The agency inspector failed to use distilled or deionized water for the Alcohol Free Test and the Interferent Detect Test.
    5. The agency inspector failed to use Class A glassware when measuring solutions.
    6. The agency inspector failed to use approved and non-expired alcohol reference solution and non-expired dry gas standard from an approved source during the applicable portions of the inspection.
    7. The agency inspector failed to enter his or her last name, first name and middle initial at USER prompts or at INSPECTOR prompts.
    8. The agency inspector failed to adjust the date or time.
    9. The result must be reported to three decimal places in g/210L.
  2. For the ALCOHOL FREE TEST, the agency inspector failed to:
    1. observe result that were 0.000 for each air blankl
    2. observe the instrument abort the inspection process if the air blank result was not 0.000.
  3. Problems with repeated tests include:
    1. After any test was out of compliance the instrument failed to prompt prompted the Agency Inspector to REPEAT (Y/N) the test.
    2. Although each test may be repeated once, the agency inspector attempted to repeated a test more than once.
    3. If the tests was repeated once, the agency inspector failed to enter the REASON when prompted (because the reason was NOT recorded in the Remarks section of FDLE/ATP Form 40 Agency Inspection Report – Intoxilyzer 8000.
  4. During the Diagnosis Check:
    1. the results of the DIAGNOSTIC CHECK (Pre-Inspection) must show OK for each diagnostic check.
    2. If the diagnostic check result is not OK, the instrument failed to abort the inspection process.  
  5. The agency inspector failed to enter the number of simulators used during the inspection.
  6. During the ALCOHOL FREE TEST, when PROVIDE SAMPLE NOW was displayed, the agency inspector failed to:
    1. introduce an alcohol-free breath sample into the instrument;
    2. after entering the alcohol free sample, the result was not 0.000;
    3. failed to rinse his or her mouth with mouth alcohol solution;
    4. when PROVIDE SAMPLE NOW was again displayed, the agency inspector failed to introduce a breath sample into the instrument;
    5. having entered a breath sample into the instrument during the mouth alcohol test, the result was not SLOPE NOT MET;
    6. attach a simulator containing 500 mL distilled or deionized water to the instrument;
    7. conduct three (3) analyses;
    8. have a result of 0.000 being returned for each analysis.
  7. During the INTERFERENT DETECT TEST, the agency inspector failed to:
    1. attach a simulator containing 3 mL of acetone stock solution and 500 mL distilled or deionized water to the instrument:
    2. conduct three (3) analyses; 
    3. observe result of INTERFERENT DETECT for each analysis.
  8. For the 0.05 g/210L TEST, the agency inspector failed to:
    1. attach a simulator containing 0.05 g/210L alcohol reference solution to the instrument;
    2. properly enter the lot number and expiration date of the alcohol reference solution used;
    3. conduct three (3) analyses; or
    4. the result of each analysis were not within the acceptable range.
  9. For the 0.08 g/210L TEST, the agency inspector failed to:
    1. attach a simulator containing 0.08 g/210L alcohol reference solution to the instrument;
    2. enter the lot number and expiration date of the alcohol reference solution used;
    3. conduct three (3) analyses; 
    4. have a result for each analysis that was within the acceptable range.
  10. For the 0.20 g/210L TEST, the agency inspector failed to:
    1. attach a simulator containing 0.20 g/210L alcohol reference solution to the instrument;
    2. enter the lot number and expiration date of the alcohol reference solution used;
    3. conduct three (3) analyses;
    4. have a result of each analysis that was within the acceptable range.
  11. For the 0.08 g/210L DRY GAS STANDARD TEST, the agency inspector failed to:
    1. attach a cylinder containing 0.08 g/210L dry gas standard to the instrument;
    2. enter the lot number and expiration date of the dry gas standard used;
    3. conduct three (3) analyses;
    4. have a result for each analysis that was within the acceptable range.
  12. For the DIAGNOSTIC CHECK (Post-Inspection), the agency inspector failed to:
    1. have a result of OK for each diagnostic check;
    2. observed instrument abort the inspection process if any diagnostic check result was not OK.
  13. The agency inspector failed to review the remarks and enter Y/N; 
  14. The agency inspector failed to enter Y/N to show whether the instrument complied or did not comply with the requirements of Chapter 11D-8, FAC.
  15. If the instrument did not comply with Chapter 11D-8, FAC, the agency inspector failed to remove the instrument from service and notify the Department Inspector.
  16. The agency inspector failed to record the results of the Agency Inspection on FDLE/ATP Form 40 Agency Inspection Report – Intoxilyzer 8000.
  17. The agency inspector failed to make the results electronically available to the Department within five (5) days of completing the inspection.

Motion to Suppress or Exclude Breath Test Results for Lack of Substantial Compliance

COMES NOW the Defendant, _________, by and through the undersigned attorney pursuant to the Florida Rules of Criminal Procedure 3.190(h), and hereby states the following: 

  1. The Defendant is charged with violating Florida Statute 316.193-2a, Driving Under the Influence.
  2. The Defendant was arrested on __[date and time]___ by ___[arresting officer] at ____[address of arrest]___.
  3. After the arrest, the arresting officer requested that Defendant submit to a breath test machine, the Intoxilyzer 8000, serial number 80-00XXXX.
  4. The Defendant was either informally advised that if he refuse to submit to breath test that his driver's license would be suspended or was formally read the entire implied consent warning.
  5. The breath test results were 0.XXX and 0.XXX.
  6. 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.
  7. 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.
  8. During the agency inspections, the inspection must comply with all of the rules found in Form 39.
  9. Although Form 30 provides the following rule: __________, the agency inspector failed to comply with that rule because _______.
  10. In addition 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.
  11. 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.
  12. [Alternatively - "The Intoxilyzer 8000 used in this case was not in compliance when it was removed from service when ___[state reason it was removed from service]].
  13. The instrument was sent to Enforcement Electronics Services, Inc., 3705 Century Blvd., Suite 2, Lakeland, FL 33811-1395.
  14. The repairs were made sometime between __[date]__ and ___[date]___.
  15. On ___[date]___, while the instrument was still at the Enforcement Electronics facility in Lakeland, FL, the FDLE Departmental Inspector did another department inspection.
  16. [Add discussion about the number of log ins]
  17. [If multiple log in attempts were made prior to the passed inspection then it calls into question whether the departmental inspector unplugged or otherwise caused a power failure 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.]
  18. The Instrument was returned to ___[agency]___ on __[date]___.
  19. Agency inspector, ___[name]___, performed an agency inspection on ___[date]___.
  20. The agency inspector is then required to perform an agency inspection prior to returning the instrument to service pursuant to Rule 11D-8.006.
  21. 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 facility.

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.

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.


Lack of Compliance with Rules for the Intoxilyzer 8000

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, May 18, 2018.