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“Volume Not Met” on Florida’s Intoxilyzer 8000

Any person who operates an automobile in this state is deemed to have consented to the submission to an approved chemical or physical test to determine breath alcohol content. §316.1932(1)(a)1.a., Florida Statutes (2018). In order to be considered valid under the implied consent law, analysis of a person’s breath must have been performed substantially in compliance with the methods approved by the Florida Department of Law Enforcement (FDLE). §316.1932(1)(b)(2), Florida Statutes (2018).

An Approved Breath Alcohol Test is defined as a minimum of two samples of breath collected within fifteen minutes of each other, analyzed using an approved breath test instrument, producing two results within .020 g/210L, and reported as the breath alcohol level, on a single Form affidavit. Fla. Admin Code Ann. R. 11D-8.002(12).

A low volume breath test reading that the State seeks to introduce is not in compliance with the implied consent law because it does not fall within the definition of an approved breath alcohol test. But in many of these cases, the breath test operator or arresting officer will argue that the driver was intentionally not blowing enough air into the machine which meant the driver actually “refused” to submit the number of valid breath test samples required.

Two issues arise in these cases. First, should the driver suffer an administrative suspension for “refusal”? In Wilson v. State, Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1143a (Fla. 7th Cir. Ct. April 30, 2001), the court found that a “volume not met” exception message would not turn an otherwise valid breath test reading into a refusal for purposes of a formal review hearing.

Secondly, should the prosecutor get to show the jury the over .08 breath test reading and also argue that a refusal occurred? In State v. Troiano, 3 Fla. L. Weekly Supp 373 (Fla. Palm Beach Cty. Ct. July 11, 1995), the court held that it is unfairly prejudicial to a Defendant to permit testimony as to both a refusal and an unlawful breath alcohol level.

Attorney for Volume Not Met Message on Intoxilyzer 8000

If your breath test reading on Florida’s Intoxilyzer 8000 involves an error or exception message for “volume not met” then contact an experienced DUI defense attorney in Tampa, FL, at the Sammis Law Firm. 

Our criminal defense attorneys are familiar with problems that occur on the Intoxilyzer 8000 including an error / exception message for interferent detect or volume not met. We are experienced in fighting DUI cases involving a breath test reading at or above .08. 

With offices in downtown Tampa in Hillsborough County and New Port Richey in Pasco County, FL, we can help you fight your DUI case in the courtrooms throughout the greater Tampa Bay area.

Call (813) 250-0500.


Why is Volume Measurement Important in the Intoxilyzer 8000 Breath Testing Sample?

The breath volume is important because it ensures that the breath being measured actually comes from the deep part of the lungs. The first 1.1 liters of exhaled breath can come from the mouth, throat, and esophagus. That first 1.1 liters of exhaled breath contains alcohol still in the mouth or other contaminents that can produce artifically high results.

If the Intoxilyzer 8000 incorrectly reads one liter of breath as two liters then it could result in the machine measuring the part of the breath sample that contains “mouth alcohol.” On the other hand, if the Intoxilyzer 8000 incorrectly reads two liters as one, that mistake could contribute to the conclusion that the user had refused to blow sufficient volume, which can mean the loss of a driver’s license if a “refusal” is alleged.


Other Methods for Introducing Breath Test Results

The prosecutor will argue that the implied consent law is not the only method available for introducing breath test results. The Definition of “Approved Breath Alcohol Test” specifies in relevant part:

Refusal or failure to provide the required number of valid breath samples constitutes a refusal. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.
Fla. Admin Code Ann. R. 11D-8.002(12).

The rule indicates that if the required number of valid breath samples is not obtained, any result, or results, obtained will be acceptable as a valid breath alcohol level if proven to be reliable. See also State v. Bender, 382 So. 2d 697 (Fla. 1980); and Robertson v. State, 604 So. 2d 783 (Fla. 1992); David A. Demers, Florida DUI Handbook §6:8, 619-620 (2017-2018 ed. 2017). 

The courts in Florida have found that, if proven reliable, the breath alcohol level is relevant to determining the materially disputed fact of whether or not Defendant’s normal faculties were impaired. The courts in these cases have ordered that a single, double, or triple low volume sample obtained from Defendant shall be excluded as invalid unless proven reliable through the traditional predicate.

When the State seeks to introduce breath test results into evidence by using the traditional scientific predicate, the State is not entitled to an instruction on the statutory presumptions. David A. Demers, Florida DUI Handbook §6:8, 619-620 (2017-2018 ed. 2017). In these cases, the Defendant shall be entitled to challenge and argue against the reliability of the machine and the breath test result.


The Inability to Accurately Measure Breath Test Volume Makes the Results Unreliable

One of the safeguards of the Intoxilyzer 8000 machine is the ability to record the volume of each breath. When that breath sample is less than 1.1 liters, the machine should report to the breath test operator the warning “volume not met.” If that warning is not provided, then the machine should have calculated that the sample volume is greater than 1.1 liters. However, no methodology used by FDLE can verify the breath volume is accurate for any given breath sample.

For example, by inspecting the records pertaining to the Intoxilyzer 8000, experts have now established yet another software flaw that allows the machine to produce a breath alcohol level when the machine reports that no breath volume was submitted for analysis.

The Intoxilyzer 8000 Instrument Specification Sheets provided by C.M.I., the manufacturer of the Intoxilyzer 8000, C.M.I. has admitted that volume measurements accuracies on the machine are plus or minus 10%.

The FDLE and C.M.I. have established an arbitrary and capricious requirement of a breath volume of 1.1 liters of breath in order to have a valid sample. The machine has undergone numerous software changes which directly and indirectly affect the analytical portions of the software that has been modified.

Despite the changes to the software, FDLE has not, as required by C.M.I., had the Intoxilyzer 8000 machine re-calibrated. Without that re-calibration, there is no assurance that the breath test volumes for the breath test device are accurate. 


Problems with the Way the Intoxilyzer 8000 Attempts to Measure Volume

In State v. Williams, 26 Fla. L. Weekly Supp. 359a, an expert testified about an anomaly in the COBRA printouts that referenced “volume” or “volume not met.” In each exhibit, an unrelated Intoxilyzer 8000 machine, in an unrelated case, had either registered a breath test result without a sufficient breath test volume of 1.1 liters, had a sufficient sample of at least 1.1 liters and indicated “breath volume not met,” indicated “no sample provided” but registered a breath test result, or recorded a physiologically impossible high breath volume.

Definition of an Approved Breath Alcohol Test in the Florida Administrative Code 

For purposes of the formal review hearing to contest the administrative suspension of the driver’s license, the criminal defense attorney can make an argument that two sample with a volume not met exception message would not constitute a “refusal.”

What is the definition of an approved breath alcohol test in the Florida Administrative Code? According to Florida Administrative Code Rule 11D-8.002(12), the phrase “Approved Breath Alcohol Test” is defined as follows:

[A] minimum of two samples of breath collected within fifteen minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.

(Emphasis added).

Neither Rule 11D-8.002(12) nor FDLE/ATP Form 37—the Intoxilyzer 8000 operational procedures—make any mention of low volume samples or “Volume Not Met” indications.

The argument that a a volume not met exception message would not turn an otherwise valid breath test reading into a refusal is supported by the Wilson v. State, Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1143a (Fla. 7th Cir. Ct. April 30, 2001).

In Wilson, a licensee was arrested for DUI, and she consented to a breath-alcohol test. Id. She provided two breath samples resulting in readings of .206 and .187 breath-alcohol content, although each reading registered as low volume samples. Id. The arresting officer asked her to provide additional breath samples, and she refused, stating that she already provided samples. Id. Therefore, the officer suspended her driving privileges for refusing to submit to a breath-alcohol test. Id.

At the review hearing, the officer testified that the two low volume samples were “valid breath tests.” Id. During testimony, he explained that he requested additional samples because he was instructed to do so by a State Attorney. Id. He further explained that, while the two samples were actually valid, a low volume sample in a prior case had been damaging at trial. Id. Therefore, he asked for additional breath samples to “cover [them]” at trial. Id.

The hearing officer sustained the suspension, but the circuit court granted certiorari and quashed the order. Id. The court reasoned that the arresting officer “testified numerous times that the two breath samples obtained from [the licensee] were valid and, in his opinion, they were otherwise sufficient to proceed.” Id. Furthermore, “[i]mplied consent does not require that a person continue to provide breath samples until the most incriminating sample can be achieved so that the State can benefit by having stronger evidence at trial.” Id.


This article was last updated on Thursday, November 1, 2018.

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