Throughout the State of Florida the Intoxilyzer 8000 is the only breath test machine in use. All those arrested for DUI are asked to take a breath test using this machine. To help ensure the accuracy, the State of Florida has enacted rules that must be followed if the prosecution wishes to admit the results using Florida’s Implied Consent Law.
When a DUI arrest is made, the driver is taken to a breath testing facility. These facilities are located throughout the state at local police departments, county sheriff’s offices, and at the Florida Highway Patrol. Additionally, some law enforcement officials have portable Intoxilyzer 8000 devices in their vehicles. In the past, Inspectors from FDLE (Department Inspectors) traveled their assigned area of the State doing onsite inspections at the breath test facility. However, recent budget cuts have caused the number of Department Inspectors employed by FDLE to fall to just two inspectors. Due to this limited personnel, FDLE made changes to the procedure for inspection of the breath test devices. Instead of the Department Inspector traveling to the breath test machine, the machines are now being packaged up, and shipped via UPS or other common carrier to the FDLE headquarters in Tallahassee, Florida.
Although in theory this may sound fine, this scheme violates the Administrative Rules, therefore invalidating all test results given on the machine. These rules require that on an annual basis the Intoxilyzer 8000 be inspected by an Inspector from the Florida Department of Law Enforcement (FDLE). These same rules require that an Intoxilyzer 8000 be inspected by a Department Inspector prior to the Intoxilyzer being returned to service after it has been sent to an authorized repair facility. Finally, the Florida Administrative Rules require that only authorized personnel have access to the Intoxilyzer 8000. These three separate rules are causing headaches for law enforcement in the State of Florida.
The Florida Department of Law Enforcement is an authorized repair facility under Florida Law. That means that prior to being put into service when returned from the Florida Department of Law Enforcement a Department Inspection must be done. The rule specifically calls for the Department inspection upon being returned to the local department. It does not allow the Department Inspection to be conducted prior to the machine being returned. Further, nowhere in any of the administrative rules are UPS, FedEx, or the USPS listed as being authorized to have access to the Intoxilyzer 8000. This means that the rules are further violated when FDLE puts the machine in the care of one of these shipping agents to be returned to the local department.
The Law Offices of Katz & Phillips, P.A., www.orlandocriminalteam.com, a statewide DUI defense firm with its main offices in Orlando, FL is currently preparing to challenge the admissibility of Breath Test results on the basis of FDLEs failure to follow the administrative rules. In the past, Katz & Phillips, has been successful in challenging the admissibility of Breath Test results based on issues of the machines reliability, accuracy and failure of the manufacture to disclose the source code which makes the machine function.
Those arrested for DUI who take the breath test should consider the experience of the Attorney they choose and ask questions regarding the attorneys experience in breath test suppression hearings. The breath test result is a key piece of evidence used by the State to prosecute those arrested for DUI.
Katz & Phillips, P.A. has offices located in Orange, Seminole, Lake and Alachua Counties.
