“Officer was not qualified to make a determination that the defendant was under influence of anything other than alcohol”
The Case of the Bad Breath Machine
If the State does not prove intoxication, there is no DUI conviction. Recently, we at DUI2Go encountered a tough case where the driver had blown into an Intoxilyzer 8000 breath machine and exceeded the legal limit in Florida of .08. Fortunately, our office has access to the logs of all breath test given by all machines in Florida and the maintenance records of these machines. As a result, we are sharing some of the Florida Department of Law Enforcement Intoxilyzer 8000 files. This is the Florida Department of Law Enforcement Alcohol Testing Program Intoxilyzer 8000 Operational Procedures also known as Form 37. In addition, the Florida Department of Law Enforcement also uses Form 38 Breath Alcohol Test Affidavit. Finally, there is some great information in the Alcohol Testing Program Intoxilyzer® 8000 Reference Guide.
The Accuracy of Intoxilyzer 8000 in CourtBefore 2014, often the state did not present scientific evidence of the machine’s accuracy. Recently, a Florida Driving Under the Influence court ruled in State v. Garcia, (20th Cir Aug 20, 2014) that the State Attorney must establish the admission of an Intoxilyzer Breath Test result. Prosecutors must use the traditional scientific predicate to introduce breath test results from Intoxilyzer 8000 in a trial. The court ruled that it could not determine whether the modified Intoxilyzer 8000 used in Florida was same machine/instrument approved by NHTSA ( National Highway Traffic Safety Administration ) for use in Florida.
Sometimes we uncover broken Intoxilyzer 8000 breath machines. We reviewed this official FDLE Form 41 Department Inspection Report records of this machine. The machine had not passed the post-inspection Diagnostic Check. The instrument does not comply with Florida Administrative Code Chapter 11D-8. In addition, after failing its monthly inspection there was no evidence of repairing the machine. Notably, the machine returned to service without any repair record.
No Proof, No DUI Conviction
When the Intoxilyzer 8000 has not been maintained, the results may be thrown out. Without that evidence, it is difficult for the state to prove your guilt. Sometimes the state will offer a reduced charge of reckless driving does not carry the risk associated with a DUI conviction. If you have another DUI conviction later, your prior convictions enhance your penalties. Your conviction penalties may include; fines, ignition interlock device, license suspension or revocation and jail or prison. Multiple DUIs can carry mandatory jail time. Once a driver has three or more DUI convictions, it becomes a felony.
How To Avoid DUI Charge
You want to Avoid DUI charges tonight (and always). Fortune Magazine says 111.3 million people watched last year’s Super Bowl. When we watch the big game with friends we may need a ride. Do NOT drink and drive. Here are the top DUI locations for Tampa. If you are charged with a DUI, call a lawyer ASAP Call (813) 222-2220. Before you even start drinking decide how you will get back home. Then you are thinking clearly and you can choose your best option: designate one person to take everyone home, use tow-to-go, take a taxi, use Uber, Lyft maybe even staying where you are.
What is Important?
You want to enjoy the game but you don’t want to make your life a mess. A DUI Charge is very expensive. The costs include:
- lost wages,
- court costs,
- bail costs,
- defense costs,
- if you are adjudicated the increase in insurance costs,
- sometimes costs associated with education,
- time getting booked
- time in court
- time negotiating how to get back and forth to work or groceries or picking up kids
- time learning about the charge
- time deciding what attorney to hire
- time away from family and friends
- stress of the DUI stop with the police
- stress of being booked into the jail
- stress of court proceedings
- stress loss of driving
- stress of loss of work
|Refusal of a Breath Test|