Breath

If a suspect is arrested for DUI in Florida, the arresting officer almost always asks the suspect to submit to a breath test.  If the suspect refuses, the officer must read the suspect Florida’s Implied Consent warning before asking the suspect again.  If the suspect refuses a second time, the suspect’s license will be automatically suspended for one-year if it is a first refusal, and for 18 months and additional misdemeanor charges if the suspect has prior refusal.

If the suspect agrees, at either the first or second request, the suspect will either be taken to a breath testing facility, or a mobile facility will come to the scene. In Florida, breath testing is conducted on a device called an Intoxylizer 8000.

Before conducting the breath test, the breath test operator must observe the suspect for 20 minutes to assure that the suspect has not regurgitated, burped or any other involuntary action that would cause the air deep in the lung to enter the mouth, which would drastically alter the test results to the detriment of the suspect.  After this 20-minute observation period, and after the Intoxilyzer goes through a series of automated steps and makes a bunch of beeping and whirring noises (see Operation, below), does the suspect provide two breath samples.

How it works:
The Intoxilyzer 8000 works by emitting an infrared light into the supplied breath sample.  The instrument then measures the amount of this light that is absorbed by the ethyl alcohol in the sample.  Because the concentration of deep, lung air is directly proportional to the amount of ethyl alcohol in that same person’s bloodstream, the breath test indicates whether the person is over the legal limit.

Operation: the operation of the Intoxilyzer 8000 is governed by law.  In fact, there is a form (Form 37) that delineates the steps that the Breath Test Operator must follow:

  •  All results are reported to three decimal places in g/210L.  The instrument must display READY MODE prior to beginning the breath test.  Push the START TEST button to begin the breath test:
  • Enter Breath Test Operator last name, first name and middle initial at USER prompts.
      • DATE/TIME.  Verify the displayed date and time.  Change if necessary.  Press ENTER.
      • LAST AGENCY INSPECTION DATE.  Verify the agency inspection date displayed.  Press ENTER.
      • CYLINDER LOT#.  Verify the dry gas standard cylinder lot number.  Change if necessary.  Press ENTER.
      • EXPIRATION DATE.  Verify the dry gas standard cylinder expiration date.  Change if necessary.  Press ENTER.
      • OBSERVATION PERIOD BEGAN.  Enter the time the observation period began (at least 20 minutes).
      • SWIPE DL OR PRESS ENTER.  Either swipe the subject’s driver license or identification card or press ENTER.  Enter applicable information as prompted.
      • DIAGNOSTICS CHECK.  The result must be OK.
      • AIR BLANK.  The result must be 0.000.
      • CONTROL TEST.  The result must be between 0.075 and 0.085, inclusive.
      • AIR BLANK.  The result must be 0.000.
      • PROVIDE SAMPLE NOW.  Have the subject provide a breath sample into the instrument.
      • AIR BLANK.  The result must be 0.000.
      • PLEASE WAIT.  The instrument will countdown the time remaining for the wait period.
      • AIR BLANK.  The result must be 0.000.
      • PROVIDE SAMPLE NOW.  Have the subject provide a breath sample into the instrument.
      • AIR BLANK.   The result must be 0.000.

Note:    If there is no 0.020 g/210L agreement between first and second breath samples, the instrument will automatically request a third breath sample as follows:

  • PLEASE WAIT.  The instrument will countdown the time remaining for the wait period.
  • AIR BLANK.  The result must be 0.000.
  • PROVIDE SAMPLE NOW.  Have the subject provide a breath sample into the instrument.
  • AIR BLANK.  The result must be 0.000.
  • CONTROL TEST.  The result must be between 0.075 and 0.085, inclusive.
  • AIR BLANK.  The result must be 0.000.
  • DIAGNOSTICS CHECK.  The result must be OK.

Inspections
All breath testing equipment in Florida must be inspected monthly by the agency that uses the instrument.  Moreover, every instrument is subject to an annual inspection by the Florida Department of Law Enforcement.

Defending a Breath Test
Although the results of a breath test can be the most damaging at trial, persuasive at trial, there are many, many, ways to get them excluded.
Common breath test defenses include:

  • Did the agency comply with inspection rules?
  • Was the breath test operator legally qualified to administer the breath test?
  • Did the operator comply with the 20-minute observation period?
  • Were the two breath samples taken with 15-minutes of each other?
  • Was mouth alcohol present?
  • Was implied consent read to the suspect?

If you have been arrested for DUI in South Florida, and were submitted to breath test, attorney Michael White can help.  You may have numerous defenses to fight the charge and/or minimize the penalties.    Contact him today for a free consultation.

Breath