Pursuant to Florida's Implied Consent Law (Florida Statute Section 316.1932) and the Florida Department of Law Enforcement's (FDLE) regulations, in DUI cases in Florida all breath testing must be done on one of two instruments manufactured by CMI, Inc., based in Owensboro, Kentucky: either CMI's Intoxilyzer 5000 or its Intoxilyzer 8000. Fla. Admins. Code R. 11D-8.003. For a breath test to be considered valid in court, the FDLE regulations have three requirements. Fla. Admins. Code R. 11D-8.003, -8004. First, the FDLE regulations require an annual inspection and maintenance by an FDLE inspector of the subject instrument to determine that it is functioning properly. Ibid. The annual inspection "validates the instrument's approval for evidentiary use." Fla. Admins. Code R. 11D-8.004 (2). The FDLE regulations also require a monthly inspection by an FDLE inspector at least once each calendar month. Fla. Admins. Code R. 11D-8.006 (1). The monthly inspection "validates the approval, accuracy and reliability of an evidentiary breath test instrument." Fla. Admin. Code R. 11D-8.003 (4). Finally, the FDLE regulations require that a breath test log of every breath test be maintained and inspected monthly by a FDLE technician. Fla. Admin. Code R. 11D-8.006 (2) (a), (c).
Notably, breath volume is a key value for the Intoxilyzer 8000, but not for the Intoxilyzer 5000. Dep't of Highway Safety & Motor Vehicles v. Cherry, 91 So. 3d 849, 857 (Fla. 5th DCA 2012). Thus, where a motorist fails to supply sufficient breath volume on an Intoxilyzer 5000 instrument – causing the instrument to be unreliable for purposes of determining breath alcohol level – the reading is still admissible at trial. Ibid. at 856 ("Current Florida law has found that low sample volume results are not facially invalid, and that they are an accurate reflection of the amount of alcohol in a person's breath sample.") (citations omitted). However, where a motorist fails to supply sufficient breath volume on an Intoxilyzer 8000 instrument, the reading is not admissible. Ibid. ("The printout from the machine established that both of the samples given by Petitioner were designated as 'Volume Not Met,' and the machine indicated that because of this, both samples were not reliable to determine breath alcohol level.") (citations omitted).
The difference is important, because a motorist's failure to provide the required number of valid breath samples constitutes a refusal to submit to a breath test. Fla. Admin. Code Ann. R. 11D-8.002 (12). Thus, a motorist who fails to supply sufficient breath volume while tested on an Intoxilyzer 8000 will be deemed to have refused to submit to the breath test. Cherry, 91 So. 3d at 856-858. While a motorist who fails to supply sufficient breath volume while tested on an Intoxilyzer 5000 will be deemed to have consented to the test. Ibid. If you or loved one has been arrested for a DUI, contact Calvo & Calvo for a free consultation to review your case for possible legal defenses such as the one posed in this blog. Our attorneys have years of experience dealing with DUI cases and the many possible defenses that can be elicited for the client's benefit.