Saturday, May 25, 2024

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Florida Fails to Follow Rules for Intoxilyzer Maintainence

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.,, 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.


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David Katz

David Katz

David Katz is one of only 4 Board Certified DUI Defense Experts practicing in the State of Florida. David achieved recognition as a DUI Defense Expert in July of 2012 from the National College for DUI Defense, the only organizations accredited by the American Bar Association to award Board Certification in the area of DUI Defense. A founding partner of Katz & Phillips, P.A., David Katz is a former Assistant State Attorney and DUI / Intoxilyzer Lead Attorney with the Seminole County State Attorney’s Office. David has prosecuted cases in both Orange and Seminole Counties. Chosen by the Florida Prosecuting Attorney’s Association, David taught DUI trial skills to new prosecutors statewide. As the Seminole County Intoxilyzer Lead Attorney he received unique training and experience with the Intoxilyzer 8000, including access to the manufacturer of the device, which he now uses to aid in the defense of DUI cases. David has been the featured speaker at Continuing Legal Education Seminars focused on DUI Defense, lecturing to attorneys practicing DUI defense throughout the country. David is also the author or co-author of nine books on DUI defense including three Inside the Minds series books focusing on DUI cases. As a defense attorney David has focused his practice on DUI defense and has played a key role in the suppression of thousands of breath test results in Central Florida and surrounding areas, acting as the lead attorney in suppression hearings focusing on source code and machine malfunction issues. David is truly focused on his clients needs. He has received the 2012 AVVO Client Choice Award and the 2013 Client Distinction Award from Martindale-Hubbell. Further, David was recently featured in NEWSWEEK Magazines' 2012 Showcase of Leading Criminal Defense Attorneys. The only dedicated DUI defense attorney to be featured this year. PROFESSIONAL AFFILIATIONS: The National College for DUI Defense The National Association of Criminal Defense Lawyers The Florida Association of Criminal Defense Lawyers The Central Florida Association of Criminal Defense Lawyers The American Bar Association The Florida Bar Association The Orange County Bar Association The Seminole County Bar Association The Lake County Bar Association DUI is not recognized as a specialized area of law in Florida, therefore Mr. Katz is not certified as a Specialist by the Florida Bar.

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