||Problems with Florida's Intoxilyzer 8000|
Tampa DUI Attorney on Breath Test Reading Over 0.08
Never assume that a breath test reading over the legal limit means that you will be convicted of DUI. Even if your reading is well over the legal limit, important defenses exist that could lead to your charges being dismissed by the trial court or dropped by the prosecutor.
Many of these cases are resolved when the prosecutor agrees to reduce the charges to the less serious offense of "reckless driving" especially when your attorney moves to exclude any mention of the breath test reading.
Pre-trial Motions to Exclude the Intoxilyzer Breath Test Reading
In many of these cases our goal is to have the breath test reading completely excluded so that if the case goes to trial the prosecutor is not able to tell the jury that the client took the breath test or blew over the legal limit.
- The individual submits to the breath test before an arrest;
- The individual's rights to obtain an independent blood, breath or urine test was violated;
- Failure to substantial comply with rules regarding the Intoxilyzer, including:
- unauthorized person having assess to the breath test instrument;
- using tap water instead of distilled water;
- failure to comply with the 20-minute observation period before breath testing;
- the defendant's medical condition such as Gerd, acid reflux, or dentures lead to an inaccurately high reading because of irregularities in the way the breath test operator administered the test;
- Motions to obtain the source code or other information about flaws in the software that impacts the accuracy or reliability of the breath testing.
Trial Issues to Contest the Breath Test Reading and Intoxilyzer Results
Just because the driver blew over the legal limit does not mean that a DUI conviction cannot be avoided. In fact, in Hillsborough County, these DUI cases are often reduced to reckless driving, especially when any kind of mistake with the testing procedure can be shown. Additionally, individual factors affecting the driver can cause concern with the admissibility of the breath test including:
- The driver's age or other factors impacting normal lung function;
- Conditions that could cause "mouth alcohol" including dental work or dentures;
- Medical conditions such as acid reflux or GERD;
- Anything abnormal that occurred during the 20 minute observation period before the test occurred;
The State of Florida uses a breath test machine called the Intoxilyzer 8000. Like several other DUI attorneys throughout the State, the Tampa DUI Attorneys at the Sammis Law Firm are fighting to have the results from this machine thrown out.
Difference Between the Intoxilyzer 5000 and the Intoxilyzer 8000
Both the Intoxilyzer 5000 (I-5000) and the Intoxilyzer 8000 (I-8000) are devices that determine the presence of alcohol through infrared light absorption testing. The machines require that a breath sample is passed through the sample chamber, The machine then sends infrared light of several wavelengths through the chamber seeking to determine how much light has been absorbed by the ethanol in the breath sample. The theory behind the machine is that by knowing the beginning voltage of the signal and measuring the voltage of the signal after the light has passed through, the device then converts the analog signal produced into a digital reading.
The Intoxilyzer requires a sufficient breath sample in order to obtain a proper sample for analysis. For the Intoxilyzer 5000, the adequacy of a sample was based upon minimum pressure, time and level slope. For the Intoxilyzer 8000, the adequacy of the sample is based upon minimum volume, time, and slope.
Pressure refers to a minimum amount of force necessary to trip the pressure switch. In the Intoxilyzer 8000, pressure refers to a minimum amount of force required to trip the pressure transducer. Slope refers to the instrument measuring small differences during the blow to help in determining whether mouth alcohol is present in the sample. In theory, the Intoxilyzer 8000 is suppose to distinguish between mouth alcohol and the deeper lung air that provides the ideal sample. The Intoxilyzer 8000 uses pressure (which is mesured by the flow of breath) and time of blow to determine if sufficient volume has been introduced into the device.
An important difference between the Intoxilyzer 5000 and the Intoxilyzer 80000 is the amount of calculations done in the software of the machine as opposed to the hardware of the machine. For the Intoxilyzer 5000, the process of measuring breath alcohol was largely hardware driven, The hardware used analog comparators, resisters and other parts providing a current to the computer processor.
On the other hand, in the Intoxilyzer 8000, the vast majority of the calculations are assigned to computer components. For instance, in the Intoxilyzer 5000, the machine required a minimum of a 6 (six) second blow in order to make sure a sufficient volume allowed for the slope detector to work properly.
The Intoxilyzer 8000 assigns this determination of determining a sufficient sample to a computer that makes a determination of time and flow. Then that determination is compared to other readings obtained throughout the blow. The computer within the machine must also detect interferent substances. As you can see, the Intoxilyzer 8000 assigns a much larger number of functions to the computer embedded in the device.
The Machine is Not "Approved" Under Florida Law
Previous challenges have been litigated over the fact that the Intoxilyzer 8000 is not an "approved" machine under Florida Law. Florida law requires that the alcohol testing program of the Florida Department of Law Enforcement Enforcement (FDLE) must evaluate only those machines that are listed on the Conforming Products List (CPL) of the U.S. Department of Transportation.
The CPL names the Intoxilyzer 8000 manufactured by CMI specifically, but further provides that the machine "...analyzes breath samples using the 3.4- and 9-micron bandwidth." The problem is that the Intoxilyzer 8000 used in Florida does not use the 9 micron or 3.4 micron bandwidth. Since the Intoxilyzer 8000 used in Florida is not the same machine as what is listed on the CPL then it should not be considered an "approved" machine under the Florida statutes.
Evidence Inspectors are "Pulling the Plug" or Otherwise Hiding Data the Machine Fails Routine Inspections
New challenges have been brought not based on the bandwidth issue, but in order to show that a particular machine is not approved because of problems with the routine monthly and annual inspections. Criminal defense attorneys have shown that these machines often fail the routine monthly inspections. In many cases, the agency inspectors falsify the reason that the machine failed (for instance they claim that an "o-ring" failed) or the even unplug the machine! A glitch in the machine allows the inspector to unplug the machine to "dump" any record that the machine failed. The only evidence left behind is the fact that a log in occurred that can not be explained.
The State of Florida is Hiding the "Source Code" to this Mysterious Machine
The results of the breath test machine should not be admissible because the State of Florida and the manufacturers of the machine are hiding the "source code" of the machine, and without the "source code" there is no way to determine if the machine really works.
Previous rulings throughout the State have held that the DUI defense attorney is not entitled to see the source code of the breath machine or to have an expert witness look at the source code of the breath test machine. Those cases, however, hinged on the fact that the DUI attorney did not make a specific showing at the hearing that the source code was relevant or that any flaw existed with the Intoxilyzer 8000 that would make examination of the source code necessary.
Recently, DUI attorneys in Orange County, Seminole County, Manatee County, and Sarasota County have successfully made such particularized showings causing the courts in those jurisdictions to require the source code to be released to the DUI defense expert witness or find that the breath test result was not admissible until the source code was released to the defense. Furthermore, these courts have been particularly concerned about the fact that the State of Florida can not produce any witness that had seen the source code or knows how the machines work.
Fighing to Exclude the DUI Breath Test Readings in Tampa, Hillsborough County, FL
At the Sammis Law Firm we have filed similar motions to contest these issues in Hillsborough County, FL. As the judges become more familiar with the problems with Florida's Intoxilyzer 8000, it becomes increasingly likely that the judges in Hillsborough County will follow the rulings made by judges in other jurisdictions excluding the breath test results. Our DUI motions to exclude the breath test results in DUI cases are currently pending in Hillsborough County, FL. Call to find out more about how these challenges might help you win your DUI case or negotiate a better disposition.