Category: Commercial DUI

Breath Test Over 08, Breath Test Refusal, Commercial DUI

Broken Breath Machine Means No DUI Conviction

W F Casey Ebsary Jr

The Case of the Bad Breath Machine

FDLE Form 41 Department Inspection Report For DUI ConvictionIf 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 Court

Before 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.

 

 

1st Time DUI, Commercial DUI, Underage DUI

First-Time DUI Diversion

W F Casey Ebsary Jr

Why Start New First-Time DUI Diversion (RIDR)?

New First-Time DUI DiversionHillsborough County has consistently been ranked the worst or near the worst in Florida for DUI crashes, injuries, and fatalities. Given the dangers of impaired driving and the importance of reducing recidivism to promote long-term Community safety, the Hillsborough County State Attorney’s Office has established the reducing impaired driving recidivism initiative. The program seeks to aggressively target and reduce impaired driving by imposing enhanced sanctions like alcohol monitoring devices and DUI education programs on first-time, non-aggravated DUI offenders. This First-Time DUI Diversion program also promotes consistency in the prosecution of DUI cases by eliminating the incentive for offenders to refuse to provide a breath sample during the investigation.

Who Is Eligible for First-Time DUI Diversion Program?

To be eligible for the First-Time DUI Diversion program, first, the case must be a misdemeanor DUI. There can be no children in the vehicle. Also, the breath alcohol concentration must be below .200% and there cannot have been a crash. Additionally, there cannot be a prior DUI alcohol-related reckless driving, driving while license suspended with serious bodily injury or death, leaving the scene of an accident with injury or death, or vehicular homicide charges in the driver’s past. Finally, there cannot have been a prior DUI diversion program, more than one non-DUI diversion program as an adult, or in the five years prior to the date of offense the driver cannot have had a prior adjudication withhold or any portion of a sentence on a felony.

What Is The Process For Selecting Cases In This DUI Diversion Program?

The state attorney’s office will evaluate all cases on an individual fact-specific basis. The state attorney’s office solely determines the individual’s eligibility for the RIDR First-Time DUI Diversion Program. There will be three sanction levels for eligible cases. Level one cases will have a breath level below .15%. Next, Level two will have breath alcohol levels above .15% but less than .20% or there has been a refusal to provide. Last, Level 3 will be for drug-related DUIs.

Why Would Someone Want To Accept A Plea Offer Under The New DUI Program?

Mainly the driver will be offered a reduced charge of reckless driving and withhold adjudication. There will be 12 months probation. Individual must pay standard court costs and cost of supervision. They will have their vehicle immobilized for 10 days. The first-time DUI offender cannot possess or consume alcohol, illegal drugs, or non prescribed drugs during that 12 month period. Also, the offender must successfully complete the DUI school and any recommended treatment.