Can We Keep Your Breath Test Results Out of Court?

Can We Keep Your Breath Test Results Out of Court?

Let Us Scrutinize the Intoxilyzer Calibration & Maintenance Records for Non-Compliance

Law Enforcement’s Burden

Can We Keep Your Breath Test Results Out of Court?Florida law places a burden on a driver to provide a breath test sample once arrested for DUI or suffer a potential administrative driver license suspension. However, a responsibility is also placed upon law enforcement to comply with many rules and regulations associated with the inspection, calibration, operation and certification of the Intoxilyzer and those persons assigned to its care and use.

Our office is well familiar with the various nuances in the law associated with Intoxilyzer breath testing. Through our discovery process we will determine whether the breath testing procedures in your case were consistent with the laws that govern the admissibility of the results in court.

The Prosecutor’s Burden – 9 Critical Questions

1.)  Was the Intoxilyzer machine used in your case properly registered and approved for use by FDLE?Florida Administrative Code 11D-8.003(2) requires that every Intoxilyzer machine used for law enforcement evidentiary purposes in the State of Florida be registered and approved by FDLE. In order to demonstrate compliance with this provision, the Prosecutor must produce a valid FDLE Registration Certificate corresponding to the specific machine used in your case.

2.)  Can the State produce proper documentation to show that a calibration check was performed in the month in which your test was administered? Florida Administrative Code 11D-8.006(1) requires that a police agency’s inspector must perform specific regulatory inspections on all evidential breath testing machines at least once every calendar month.

3.)  Can the State produce proper documentation to show that an annual calibration check was performed on the Intoxilyzer machine used in your case? Florida Administrative Code 11D-8.004(3) requires that all evidential breath testing machines be inspected by a Regional Alcohol Breath testing Inspector employed by the Florida Department of Law Enforcement once each calendar year.

4.)  If you provided a breath sample at a DUI Checkpoint or Roadblock, was the Intoxilyzer used relocated from a former stationary facility? Florida Administrative Code Section 11D-8.006(2) provides for additional calibration checks when a breath testing instrument is used in a mobile breath testing vehicle. This rule mandates that further agency inspection shall be conducted:

  • Prior to the instrument’s removal from the police department;
  • Again, upon the relocation of the instrument into the mobile breath testing vehicle, and prior to it being used for mobile evidentiary breath testing purposes.

5.)  Was the Agency Inspector properly licensed in compliance with Florida Administrative Code 11D-8.002(5) and 11D-8.008(2) to perform calibration checks as evidenced by their FDLE Permitting Certificate? If the Agency Inspector was properly licensed, had their permit lapsed beyond the four-year period specified by Florida Administrative Code 11D-8.008(3)?

6.)  During law enforcement’s calibration checks, did the Agency Inspector properly test the range of the Intoxilyzer’s accuracy? Florida Administrative Code 11D-8.002(1) requires minimum calibration testing by law enforcement of multiple tests, at three known alcohol concentration levels.

7.)  During FDLE’s annual calibration check, did the Department Inspector properly test the range of the Intoxilyzer’s accuracy? Florida Administrative Code 11D-8.004(2) requires a minimum calibration testing by FDLE of ten tests, at each of three known alcohol concentration levels.

8.)  Did the calibration checks performed by both the Agency Inspector and the FDLE Department Inspector reveal test results that fell outside of permitted deviation ranges? Florida Administrative Code 11D-8.002(1) requires that the calibration checks result in a machine falling within the following acceptable ranges:

  • For a known .05 alcohol concentration the range is .045 – .055
  • For a known .08 alcohol concentration the range is .075 – .085
  • For a known .20 alcohol concentration the range is .190 – .210

9.)  Was the Intoxilyzer Operator in your case properly licensed in compliance with Florida Statutes Chapters 316, 322, 327 and Florida Administrative Code 11D-8.002(17) to lawfully conduct breath testing?If the Intoxilyzer Operator was properly licensed, had their permit lapsed beyond the four-year period specified by Florida Administrative Code 11D-8.008(3)?

How Important is the Calibration Procedure?

Our office retained the services of Patent and Trademark attorney, Anton Hopen, who secured for us copies of the various patents issued to CMI, Inc. This company is the manufacturer of the Intoxilyzer breath testing instruments used by law enforcement throughout Pinellas County. Our review of these patents revealed a concession on the part of the manufacturer that even minor deviations in the proper calibration of the machine can result in major inaccuracies during the breath testing procedure. Reproduced below is the exact language used by the manufacturer to express their clear concern for any machine that has not been subject to timely calibration and maintenance.

United States Patent and Trademark Office
Patent Number: 5,422,485
Application Filed: July 9, 1993
Issue Date of Patent: June 6, 1995
Inventor: Harvey F. Bowlds Assignee: CMI, Inc.

“Precise and reliable calibration of infrared breath alcohol measuring instruments is very important because even small errors in the measured attenuation can cause relatively large errors in the alcohol content determined by the computer. To avoid improper arrest and charges, including for driving under-the-influence, and to maintain the credibility of the instruments and alcohol readings taken thereby, reliable and precise calibration is required.”

– Excerpt from the Patent Specification, Background of the Invention Section, Column 1, Lines 44-60

What if a Calibration or Maintenance Problem is Discovered in Your Case?
What if a Calibration or Maintenance Problem is Discovered in Your Case?

Florida Statute Section 316.194(3) provides that the Prosecutor may introduce breath test results only upon a showing of “substantial compliance” with the administrative rules. If your attorney can point to a failure on the part of law enforcement to comply with the many administrative rules, statutes and other requirements, the court then has the authority and obligation to prevent the Prosecutor from introducing your breath test results in court. Having your breath test results excluded will often place you in a superior negotiating position that could result in a reduction of the charge down to a “reckless driving” offense. In some cases, the suppression of the breath test readings could result in an outright dismissal of the DUI charge.

Other Defenses That May be Available

If an investigation by your attorney reveals that law enforcement substantially complied with the laws governing forensic breath testing, other avenues of attack may still be available to afford you with the opportunity to exclude the breath test readings:

  • Did the officer have the right to originally stop your vehicle?
  • If you were arrested at a DUI checkpoint, was the establishment and operation of this random stopping of motor vehicles made in compliance with Florida law?
  • Was your breath test sample secured voluntarily or was your decision to blow into the Intoxilyzer caused by undue influence or unlawful coercion?
  • Prior to your submission to the Intoxilyzer, were you properly observed for a twenty minute period to make certain that you did not place something in your mouth or regurgitate anything from your stomach?

Our office can closely examine your case from multiple angles in order to identify any legal issues that could lead to the exclusion of your breath test results. Call us at (727) 578-0303 to schedule a free consultation to discuss the individual facts and circumstances of your case.


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Our Office Locations
Main Office:
Baypoint Commerce Center
The Koger Building
Corner of 9th Street North & Gandy Blvd.
9721 Executive Center Drive North, Suite 120
St. Petersburg, FL 33702
Consultations also available at:
Ulmerton Road and 58th Street North
The Summit Building
Clearwater, Florida 33760