DUI with a Breath Test on Florida's Intoxilyzer 8000
Florida uses the Intoxilyzer 8000 to analyze a breath sample after a driver is arrested for DUI. The test is used to determine a person's blood alcohol content. In Florida, drivers are considered under the influence if their BAC is more than 0.08.
Many people think if they blew more than the legal limit into the Intoxilyzer 8000, there would be no defense in their situation. However, depending on the particular facts and circumstances of your case, there may be important ways to challenge the DUI-related charge based on the results of the chemical test.
Attorney for the DUI Breath Test in Tallahassee, FL
If you agreed to submit to the breath test on the Intoxilyzer 8000 and blew more than the legal limit of 0.08, contact an experienced DUI breath test attorney at Pumphrey Law. The attorneys at Pumphrey Law have extensive experience fighting to exclude the breath test evidence at trial.
Attorney Don Pumphrey is a member of the National College for DUI Defense (NCDD) and has attended numerous seminars devoted specifically to fighting the Intoxilyzer 8000, the only evidentiary breath test instrument used in Florida. Attorney Aaron Wayt has attended courses to study the device and has received hands-on training concerning the operation of the machine.
Pumphrey Law has years of experience helping clients facing a variety of DUI charges, and our attorneys will treat your case with the utmost importance. Our attorneys understand the problems with Florida's Intoxilyzer 8000 and how to use these problems with the breathalyzer to help you win your case.
The attorneys represents clients throughout Tallahassee and the surrounding areas throughout Florida's Second Judicial Circuit, including Crawfordville in Wakulla County, Bristol in Liberty County, Quincy in Gadsden County and Monticello in Jefferson County.
Call (850) 681-7777 to schedule a free case consultation.
Intoxilyzer 8000 Information Center
- History of the Intoxilyzer 8000 and the Florida Software
- Problems with Breath Volume
- Surprising Facts about the Intoxilyzer 8000
- Legal Challenges to the Breath Test
The Intoxilyzer 8000 utilizes a computer program, versions of which range from 8100.08 to 8100.27, to produce a breath alcohol level. Currently, the Intoxilyzer 8000 machines are using the software version 8100.27, although no independent testing of any version of the software has even been allowed.
All of the alleged "fail-safe" procedures, supposedly designed to flag malfunctions of the Intoxilyzer 8000 machine, are contained in and performed by the computer program within the machine. For most of these "fail-safe" procedures, what thresholds are required to trigger the "fail safe" flags are unknown. Additionally, the machine is programmed only to show one "fail safe" flag. The priority used to determine which "fail safe" flag is shown is not known even to the FDLE.
Without the computer program, the Intoxilyzer 8000 will not operate. The FDLE has stated it approved software versions 8100.09 and 8100.10 in the 2002 version of FDLE Rule 11D-8.003. Since that purported approval of the Intoxilyzer 8000 there has been up to 17 subsequent revisions to the software, one of which is software version that currently is used.
FDLE has admitted in correspondence dated Oct. 5, 2006, that software flaws have been discovered and the Intoxilyzer 8000 machine reported unscientifically reliable data as scientifically reliable. These flaws are based on the machine's ability or inability to measure the breath volume on any individual test.
The Intoxilyzer 8000 is not designed to measure the accuracy of the breath volume when simulators are used to test the accuracy of the machine. This means department inspections, agency inspections and registration inspections under FDLE Rules 11D- 8.003, 11D-8.004 and 11D-8.006 may not properly test the accuracy of results obtained on actual human breath samples.
The FDLE Departmental Inspector has admitted the department has made no attempt by use of independent instrumentation to determine the accuracy of the volume provided on any individual breath test administered to live human individuals.
- No one outside of the manufacturer has ever seen the "source code" of the device or an unencrypted version of the Florida software that runs the machine.
- The state of Florida sued the manufacturer of the machines to determine whether it had any right to inspect the "source code" of the machine or the Florida software that runs the machine.
- Each state can design its own software to report or hide certain data that is important to determine whether the machine is working properly.
- The factory warranty on the Intoxilyzer 8000 lasts only for 90 days.
- The manufacturer states the machines are not warranted to be for “any particular fitness or purpose” which directly contradicts the reason the machines were designed.
- Breath testing in DUI cases is the only type of scientific test that completely destroys the entire sample during the testing process, making independent retesting impossible, unlike fingerprint analysis, DNA testing, urine testing or blood testing.
In many DUI cases involving a breath test reading over the legal limit of 0.08, important challenges can be raised prior to trial to try to exclude any mention of the breath test result at trial. This area of the law is in a constant state of flux as new legal challenges are brought up frequently.
As new problems are discovered with the Intoxilyzer 8000, the success of these challenges also changes over time. The most common of these challenges include:
- Problems with an illegal stop or arrest — With this defense, an attorney can question if the officer had probable cause to conduct a traffic stop of the vehicle and if he or she had probable cause to order the driver to exit the vehicle and perform field sobriety exercises. The defense also can question if the officer had probable cause to arrest the driver for DUI after the field sobriety exercises.
- Problems with the Implied Consent Warnings — The defense can examine if the officer coerced the driver into taking the breath test by misadvising the driver of the "implied consent" law. Drivers have the right to refuse to a chemical test.
- Problems with administering the breath test —A problem with the test could occur if the officer or technician failed to observe the driver for the entire 20-minute period before taking the breath test. In some cases, the breath test technician can attempt to improperly increase the breath volume by telling the driver to blow more into the device. Radios and cell phones also can cause electronic interference.
- Medical problems could have led to an inflated breath test reading — Some medical conditions, such as dentures or dental work can affect the tests. Any small burp or hiccup during the 20-minute observation period, or GERD or acid reflux, can skew the results. Other medical problems that can lead to an inflated breath test result include:
- Fever, which can dramatically cause an artificial increase in the breath test reading
- Lung problems, such as bronchitis
- Asthma and other breathing problems
- Unusual diets or fasting prior to testing.
- Special defenses for women — There could be special defenses for thin or petite women who have a body’s partition ratio well above or below 2100:1. Also, normal fluctuations in a woman's body temperature which can artificially inflate the breath test reading, and there are differences in a woman's lung capacity.
- Subpoena for Intoxilyzer 8000's source code - The Third District held that the out-of-state owner of Intoxilyzer source code was not a “material witness” and accordingly could not be compelled to answer a subpoena in this state pursuant to section 942.02, Florida Statutes (2005), because the information sought was not “material' ” to the DUI prosecution, meaning it did not bear on an issue in the case. State v. Bastos, 985 So.2d 37, 41–42 (Fla. 3d DCA 2008).
The Formal Review Hearing after a DUI Arrest with a Breath Test Reading over .08
Under Florida law, upon a timely request for formal review by the driver subject to a license suspension, DHSMV is tasked with conducting a formal administrative review of the license suspension. Fla. Admin. Code R. 15A-6013 (2011). These hearings are presided over by a hearing officer, who is tasked with the responsibility of “determin[ing] whether the suspension . . . is supported by a preponderance of the evidence.” Fla. Admin. Code R. 15A-6013 (2011); see also § 322.2615(7), Fla. Stat. (2011).
If the driver's license was suspended as a result of a breath-alcohol test indicating the driver was impaired, the scope of the hearing officer's review is limited to determining:
- Whether the initial stop of the vehicle and detention of the driver was legal;
- Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in the state while under the influence of alcoholic beverages or chemical or controlled substances.
- Whether the person whose license was suspended had an unlawful . . . breath-alcohol level of 0.08 or higher as provided in s. 316.193.
§ 322.2615(7)(a). DHSMV is only required to establish an unlawful breath-alcohol level by a preponderance of the evidence.
For a breath-alcohol affidavit to be admissible at the hearing, DHSMV must establish:
- that the breath test was performed substantially in accordance with the methods approved by FDLE, with an approved device by a qualified technician; and
- that the device has been inspected in accordance with FDLE rules to assure its accuracy.
State v. Donaldson, 579 So. 2d 728, 729 (Fla. 1991); Dep't of High. Saf. & Motor Veh. v. Berne, 49 So. 3d 779, 782 (Fla. 5th DCA 2010); see also § 316.1932(1)(b)(2), Fla. Stat. (2011). Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine
Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath.” § 316.1934(5), Fla. Stat.; see also § 316.1934(2)(c) (providing that a test result of 0.08 or higher is “prima facie evidence” that the person was impaired).
Finding a DUI Defense Attorney for the Intoxilyzer 8000 Breath Test Machine
After taking the breath test and blowing more than the legal limit, seek the services of a criminal defense attorney at Pumphrey Law. Challenging the Intoxilyzer 8000 requires the knowledge necessary to understand the machine and its limitations. Our attorneys are experienced in fighting these types of cases.
Call (850) 681-7777 to schedule a free consultation.
This article was last updated on Friday, March 17, 2017.
Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.