Pumphrey Law Criminal Defense Florida DUI Breathalyzer Test / Intoxilyzer 8000

DUI with a Breath Test on Florida's Intoxilyzer 8000

Since 2006, Florida has used the Intoxilyzer 8000 to analyze driver’s breath samples after the driver is pulled over and suspected of a DUI. The test is used to determine a person’s blood alcohol content. In Florida, drivers are considered under the influence if their BAC is more than 0.08.

Many people think that if they blew more than the legal limit into the Intoxilyzer 8000, there would be no defense in their situation. However, depending on the particular facts and circumstances of your case, there may be important ways to challenge the DUI-related charge based on the results of the chemical test.

Your criminal defense attorney may be able to audit the Intoxilyzer 8000 that you blew on to see the reliability of the machine and use that information to help fight the charges in your case.

Attorney for the DUI Breath Test in Tallahassee, FL

If you agreed to submit to the breath test on the Intoxilyzer 8000 and blew more than the legal limit of 0.08, contact an experienced DUI breath test attorney at Pumphrey Law. The attorneys at Pumphrey Law have extensive experience fighting to exclude the breath test evidence at trial.

Attorney Don Pumphrey is a member of the National College for DUI Defense (NCDD) and has attended numerous seminars devoted specifically to fighting the Intoxilyzer 8000, the only evidentiary breath test instrument used in Florida. Attorney Aaron Wayt has attended courses to study the device and has received hands-on training concerning the operation of the machine. 

Pumphrey Law has years of experience helping clients facing a variety of DUI charges, and our attorneys will treat your case with the utmost importance. Our attorneys understand the problems with Florida’s Intoxilyzer 8000 and how to use these problems with the breathalyzer to help you win your case. 

The attorneys represent clients throughout Tallahassee and the surrounding areas throughout Florida’s Second Judicial Circuit, including Crawfordville in Wakulla County, Bristol in Liberty County, Quincy in Gadsden County, and Monticello in Jefferson County.

Call (850) 681-7777 to schedule a free case consultation.

---

Intoxilyzer 8000 Information Center

• Florida’s Implied Consent Law
• History of the Intoxilyzer 8000 and the Florida Software
• Problems with Breath Volume
• Surprising Facts about the Intoxilyzer 8000
• Legal Challenges to the Breath Test
• Florida DUI FAQ

---

Back to top

Florida’s Implied Consent Law

Florida’s Implied Consent Law sets out when law enforcement can request that a driver submit to a breathalyzer, urine analysis, and blood test when being investigated for a possible DUI charge. These tests are done to measure the driver’s blood-alcohol level and their level of impairment.

Under Florida Statute Section 316.1932, everyone who obtains a Driver’s License has given their consent to submit to any lawful request for a breath, urine, or blood test if they are lawfully arrested for an offense committed while driving. This implied consent is to be used to determine a person’s blood-alcohol level or level of driving impairment.

Florida’s Department of State maintains Florida’s Administrative Code and Register, which sets outs the agency’s rules and notices. Chapter 11D-8 sets out the rules that apply to Florida’s Implied Consent Program and FDLE’s Alcohol Testing Program (“ATP”), which includes the breath test methods and instruments, as well as the agency and department inspection guidelines.

The ATP has the exclusive responsibility to register and annually inspect the breath test machines that are maintained by those agencies. They are also in charge of regulating the agency inspectors and breath test operators who in turn maintain, inspect, and operate the Intoxilyzer 8000 machines in our State.

To learn more about Florida’s Implied Consent Law, visit our blog here.

Back to top

History of the Intoxilyzer 8000 and the Florida Software

Since March 2006, the only breath test machine that’s used in Florida is the Intoxilyzer 8000. This machine is approved for evidentiary use and is designed for mobile and stationary breath alcohol analysis.

The Intoxilyzer 8000 utilizes a computer program, versions of which range from 8100.08 to 8100.27, to produce a breath alcohol level. Currently, the Intoxilyzer 8000 machines are using the software version 8100.27, although no independent testing of any version of the software has even been allowed.

All of the alleged “fail-safe” procedures, supposedly designed to flag malfunctions of the Intoxilyzer 8000 machine, are contained in and performed by the computer program within the machine. For most of these “fail-safe” procedures, what thresholds are required to trigger the “fail-safe” flags are unknown. Additionally, the machine is programmed only to show one “fail-safe” flag. The priority used to determine which “fail-safe” flag is shown is not known even to the FDLE.

Without the computer program, the Intoxilyzer 8000 will not operate. The FDLE has stated it approved software versions 8100.09 and 8100.10 in the 2002 version of FDLE Rule 11D-8.003. Since that purported approval of the Intoxilyzer 8000 there has been up to 17 subsequent revisions to the software, one of which is the software version that is currently used.

FDLE has admitted in correspondence dated Oct. 5, 2006, that software flaws have been discovered and the Intoxilyzer 8000 machine reported unscientifically reliable data as scientifically reliable. These flaws are based on the machine’s ability or inability to measure the breath volume on any individual test.

Back to top

Problems with Breath Volume

Intoxilyzer’s normally detect alcohol by infrared spectroscopy. This means that the device is identifying the alcohol molecules based on the way that they absord infrared light. Inside these Intoxilyzer’s machine’s there is a lamo that generates multiple wavelength infrared beams that pass through a sample chamber and then is focused by a lens onto a spinning filtering wheel.

The Intoxilyzer 8000 is not designed to measure the accuracy of the breath volume when simulators are used to test the accuracy of the machine. This means department inspections, agency inspections, and registration inspections under FDLE Rules 11D- 8.003, 11D-8.004, and 11D-8.006 may not properly test the accuracy of results obtained on actual human breath samples.

The FDLE Departmental Inspector has admitted the department has made no attempt to use an independent instrumentation to determine the accuracy of the volume provided on any individual breath test administered to live human individuals.

Back to top

Surprising Facts about the Intoxilyzer 8000

• No one outside of the manufacturer has ever seen the “source code” of the device or an unencrypted version of the Florida software that runs the machine.
• The state of Florida sued the manufacturer of the machines to determine whether it had any right to inspect the “source code” of the machine or the Florida software that runs the machine.
• Each state can design its own software to report or hide certain data that is important to determine whether the machine is working properly.
• The factory warranty on the Intoxilyzer 8000 lasts only for 90 days.
• The manufacturer states the machines are not warranted to be for “any particular fitness or purpose” which directly contradicts the reason the machines were designed.
• Breath testing in DUI cases is the only type of scientific test that completely destroys the entire sample during the testing process, making independent retesting impossible, unlike fingerprint analysis, DNA testing, urine testing, or blood testing.

Back to top

Legal Challenges to the Breath Test

In many DUI cases involving a breath test reading over the legal limit of 0.08, important challenges can be raised prior to trial to try to exclude any mention of the breath test result at trial. This area of the law is in a constant state of flux as new legal challenges are brought up frequently.

As new problems are discovered with the Intoxilyzer 8000, the success of these challenges also changes over time. The most common of these challenges include:

• Problems with an illegal stop or arrest
  With this defense, an attorney can question if the officer had probable cause to conduct a traffic stop of the vehicle and if he or she had probable cause to order the driver to exit the vehicle and perform field sobriety exercises. The defense also can question if the officer had probable cause to arrest the driver for DUI after the field sobriety exercises.
• Problems with the Implied Consent Warnings
  The defense can examine if the officer coerced the driver into taking the breath test by misadvising the driver of the “implied consent” law. Drivers have the right to refuse to a chemical test.
• Problems with administering the breath test
  Under FDLE Rules 11D- 8.007, the breath test operator must reasonably ensure that the person taking the test does not take anything by mouth or regurgitate for at least a 20-minute period. While the operator is not required to observe the person for an extra 20 minutes, a problem with the test could occur if the officer or technician failed to observe the driver for the entire 20-minute period before taking the breath test. In some cases, the breath test technician can attempt to improperly increase the breath volume by telling the driver to blow more into the device. Radios and cell phones also can cause electronic interference.
• Look at the login records for the Intoxilyzer 8000 machine used in your case
  When performing an audit of the Intoxilyzer 8000 machine, it’s important to look at the login records for the machine used in your case. This is because any unexplained logins could be crucial in determining if there has been any hampering or errors with the machine. When an Intoxilyzer 8000 fails an inspection, the agency inspector need only unplug the machine before the inspection is completed to erase any data from the failed inspection. When this occurs, the only thing that remains is an unexplained login record.
• Medical problems could have led to an inflated breath test reading
  Some medical conditions, such as dentures or dental work can affect the tests. Any small burp or hiccup during the 20-minute observation period, or GERD or acid reflux, can skew the results. Other medical problems that can lead to an inflated breath test result include:
  • Fever, which can dramatically cause an artificial increase in the breath test reading
  • Lung problems, such as bronchitis
  • Asthma and other breathing problems
  • Unusual diets or fasting prior to testing.
• Special defenses for women
  There could be special defenses for thin or petite women who have a body’s partition ratio well above or below 2100:1. Also, normal fluctuations in a woman’s body temperature which can artificially inflate the breath test reading, and there are differences in a woman’s lung capacity.
• Subpoena for Intoxilyzer 8000’s source code
  The Third District held that the out-of-state owner of the Intoxilyzer source code was not a “material witness” and accordingly could not be compelled to answer a subpoena in this state pursuant to section 942.02, Florida Statutes (2005), because the information sought was not “material’ ” to the DUI prosecution, meaning it did not bear on an issue in the case. State v. Bastos, 985 So.2d 37, 41–42 (Fla. 3d DCA 2008).

The Formal Review Hearing after a DUI Arrest with a Breath Test Reading over .08

Under Florida law, upon a timely request for formal review by the driver subject to a license suspension, DHSMV is tasked with conducting a formal administrative review of the license suspension. Fla. Admin. Code R. 15A-6013 (2011). These hearings are presided over by a hearing officer, who is tasked with the responsibility of “determin[ing] whether the suspension . . . is supported by a preponderance of the evidence.” Fla. Admin. Code R. 15A-6013 (2011); see also § 322.2615(7), Fla. Stat. (2011).

If the driver’s license was suspended as a result of a breath-alcohol test indicating the driver was impaired, the scope of the hearing officer’s review is limited to determining:

1. Whether the initial stop of the vehicle and detention of the driver was legal;
2. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in the state while under the influence of alcoholic beverages or chemical or controlled substances.
3. Whether the person whose license was suspended had an unlawful breath-alcohol level of 0.08 or higher as provided in s. 316.193.

Under Section 322.2615(7)(a), the DHSMV is only required to establish an unlawful breath-alcohol level by a preponderance of the evidence. This standard is normally used in civil trials, but is also sometimes used to prove certain matters in criminal trials. Under the Preponderance of the evidence standard, the DHSMV need only show enough evidence that there is more than a 50% chance that the claims asserted are true.

For a breath-alcohol affidavit to be admissible at the hearing, DHSMV must establish:

1. that the breath test was performed substantially in accordance with the methods approved by FDLE, with an approved device by a qualified technician; and
2. that the device has been inspected in accordance with FDLE rules to assure its accuracy.

State v. Donaldson, 579 So. 2d 728, 729 (Fla. 1991); Dep’t of High. Saf. & Motor Veh. v. Berne, 49 So. 3d 779, 782 (Fla. 5th DCA 2010); see also § 316.1932(1)(b)(2), Fla. Stat. (2011). Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine

Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath.” § 316.1934(5), Fla. Stat.; see also § 316.1934(2)(c) (providing that a test result of 0.08 or higher is “prima facie evidence” that the person was impaired).

Back to top

Finding a DUI Defense Attorney for the Intoxilyzer 8000 Breath Test Machine

After taking the breath test and blowing more than the legal limit, seek the services of a criminal defense attorney at Pumphrey Law. Challenging the Intoxilyzer 8000 requires the knowledge necessary to understand the machine and its limitations. Our Tallahassee DUI attorneys are experienced in fighting these types of cases.

Call (850) 681-7777 or leave an online message today to schedule a free consultation with an experienced criminal defense lawyer today. 

---

Article Updated June 12th, 2022