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Breath Alcohol Tests for DUI In Florida

During a DUI/DWI investigation in St. Augustine, the arresting officer will request that the driver provide a breath sample. The breath alcohol test and/or refusal to submit to such test must be “incidental to a lawful arrest.” The driver will usually be in handcuffs at this point. 

If the driver refuses to submit, the officer will read the Florida implied consent warning from a preapproved card. See sample implied consent warning below. If the driver agrees to a test, the breath alcohol test may occur roadside or at the nearest jail. In Saint Johns County, the St. Johns County Sheriff’s Office and the Florida Highway Patrol are equipped with “DUI patrol vehicles” that have the “Intoxilyzer 8000.”  

To be valid, a breath alcohol test must be performed by a certified Breath Test Operator in accordance will the approved procedures on an approved Intoxilyzer 8000. The results of a breath alcohol test should be recorded on a Breath Test Affidavit (FDLE-ATP: Form 38). 

The electronic data from the breath test will also be sent to the Florida Department of Law Enforcement – Alcohol Testing Program. The results can be located online by clicking “Subject Test Data” at https://www.fdle.state.fl.us/Alcohol-Testing-Program/Intoxilyzer-8000-Records 

If the driver blows over the legal limit of .08 or more, they will be considered “per se” driving under the influence in Florida and the prosecutor will not have to prove “impairment of normal faculties.” 

If the driver refuses to submit, the prosecution will attempt to argue consciousness of guilt.  See Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008) (When a law enforcement officer has probable cause to believe that an accused has committed a driving under the influence (DUI) offense, the officer can lawfully compel the person to perform field sobriety exercises and a breath test; if the accused refuses, the State at trial can elicit testimony regarding that refusal as evidence of the person’s consciousness of his or her guilt.).

If you were arrested for a violation of Florida statute section 316.193 (“Driving under the influence; penalties”) and need an experienced DUI defense attorney in St. Augustine, call Mydock Law at (904) 864-3002 for a free consultation. 

FLORIDA’S IMPLIED CONSENT LAW

Florida’s “Implied Consent Law” can be found at section 316.1932 (“Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal.”), which provides: 

  • By applying for a driver license and by accepting and using a driver license, the person holding the driver license is deemed to have expressed his or her consent to the provisions of this section (regarding breath, urine, and/or blood testing).
  • A nonresident or any other person driving in a status exempt from the requirements of the driver license law, by his or her act of driving in such exempt status, is deemed to have expressed his or her consent to the provisions of this section.
  • A warning of the consent provision of this section shall be printed on each new or renewed driver license.

If you need an attorney to fight a DUI breath test case in St. Johns County, Florida or surrounding areas contact Mydock Law at (904) 864-3002 for a free consultation.

FLORIDA’S IMPLIED CONSENT WARNING

Below is the standard implied consent warning issued to Deputies at the St. Johns County Sheriffs Office. They will read from this card when requesting a breath test following a DUI arrest:

REFUSAL TO SUBMIT TO A BREATH TEST

Refusal to submit to a breath alcohol test can lead to an enhanced administrative suspension for a violation of Florida’s Implied Consent Law. A second refusal can be charged as a first degree misdemeanor in violation of section 316.1932. A driver has the right to challenge the administrative suspension at a Formal Review Hearing. The driver only has 10 days from the date on the citation to file a demand in compliance with section 322.2615 (“Suspension of license; right to review), Florida Statutes.

When a law enforcement officer has probable cause to believe that an accused has committed a driving under the influence (DUI) offense, the officer can lawfully compel the person to perform field sobriety exercises and a breath test; if the accused refuses, the State at trial can elicit testimony regarding that refusal as evidence of the person’s consciousness of his or her guilt. See Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).

Under the implied consent statute, a defendant is not precluded, in trial for driving under the influence (DUI), from explaining to the jury his reasons for refusing to take breath test; the defendant can himself introduce refusal evidence, along with other testimony concerning the circumstances of refusal, which may militate in his favor and counter the State’s consciousness-of-guilt argument. See Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2011)

Defendant’s refusal to submit to field sobriety tests was inadmissible to establish consciousness of guilt in prosecution for driving under the influence (DUI), where officers did not inform him of the adverse consequences of refusing to perform a field sobriety test. See Howitt v. State, 266 So.3d 219 (Fla. 5th DCA 2019)

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0322/Sections/0322.2615.html  

WHAT IS THE LEGAL LIMIT FOR DUI IN FLORIDA?

In Florida, the legal limit is .08 or more. See section 316.193, Florida Statutes. The breath-alcohol level must be based upon grams of alcohol per 210 liters of breath. The blood-alcohol level must be based upon grams of alcohol per 100 milliliters of blood. See section 316.1932(1)(b)1, Florida Statutes.

Attorney Travis Mydock is a Board-Certified Specialist in Criminal Trial Law by The Florida Bar. His practice is limited to DUI and criminal defense. 

Mydock Law is a boutique criminal defense law firm located in St. Augustine, Florida. The firm frequently defends DUI cases in the Seventh Judicial Circuit: Flagler, Putnam, St. Johns, and Volusia counties; the Fourth Judicial Circuit: Clay and Duval counties; and the Eighth Judicial Circuit: Alachua, Bradford, and Baker counties.

Attorney Mydock has vast experience in all types of Florida DUI/DWI cases and related issues. Call Mydock Law for a free consultation in DUI cases.

THE BREATH ALCOHOL TEST FOR DRIVING UNDER THE INFLUENCE

If you have a Florida driver license, you have agreed to a breath alcohol test. The test must be incidental to a lawful arrest and administered at the request of a law enforcement officer in accordance with Chapter 11D-8, Florida Administrative Code. 

Florida law provides the following:

Section 316.1932(1)(a)1.a. A person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended or if he or she has previously been fined under s. 327.35215 as a result of a refusal to submit to a test or tests required under this chapter or chapter 327, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended or if he or she has previously been fined under s. 327.35215 for a prior refusal to submit to a lawful test of his or her breath, urine, or blood as required under this chapter or chapter 327, he or she commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, in addition to any other penalties provided by law. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

If you need an attorney to fight a DUI breath alcohol test case in St. Johns County, Florida or surrounding areas contact Mydock Law at (904) 864-3002 for a free consultation.

FDLE ALCOHOL TESTING PROGRAM IN FLORIDA

The Alcohol Testing Program (ATP) within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in chapters 316, 322, and 327. 

The ATP is also responsible for the regulation of the individuals who operate, inspect, and instruct on the breath test instruments utilized in the driving and boating under the influence provisions and related provisions located in Chapters 316, 322 and 327. 

The program is further responsible for the regulation of blood analysts who conduct blood testing to be utilized under the driving and boating under the influence provisions and related provisions located in chapters 316, 322 and 327. 

See for more information @ https://www.fdle.state.fl.us/Alcohol-Testing-Program 

APPROVED BREATH ALCOHOL TEST PROCEDURES IN FLORIDA

An analysis of a person’s breath, to be valid, must have been “performed substantially according to methods approved” by the Department of Law Enforcement in Chapter 11D-8 of the Florida Administrative Code. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid.

The law does not require strict compliance with the rules. 

THE 20 MINUTE OBSERVATION PERIOD

In Chiaravalle v. State, 373 So. 3d 881, 883-884 (Fla. 4th DCA 2023), the Fourth District Court of Appeal recently reviewed the requirements of the 20-minute observation period by stating:

The relevant administrative code and statutory provision regulating the breath test procedure provides as follows:

(3) The breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test. This provision shall not be construed to otherwise require an additional twenty (20) minute observation period before the administering of a subsequent sample. Fla. Admin. Code R. 11D-8.007.

An analysis of a person’s breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement. For this purpose, the department may approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid. § 316.1932(1)(b)(2), Fla. Stat. (2021) (emphasis added).

Thus, for the results of the breath test procedure to be admissible, compliance with the applicable administrative regulations need only be in substantial conformity. Dep’t of Highway Safety & Motor Vehicles v. Russell, 793 So. 2d 1073, 1075 (Fla. 5th DCA 2001) (“For the results of a defendant’s breath test to be admissible, the State must establish that the test was made in substantial conformity with the applicable administrative rules and statutes. Insubstantial differences or variations from approved techniques does not render the test nor the test results invalid.”) (citation omitted); see also Belvin v. State, 922 So. 2d 1046, 1051 (Fla. 4th DCA 2006) (acknowledging generally that substantial compliance is the standard for rules regarding breath tests); State v. Donaldson, 579 So. 2d 728, 729 (Fla. 1991); Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So. 2d 141, 144 (Fla. 2d DCA 2002).

“Continuous face to face observation for twenty minutes is not required to achieve substantial compliance with the approved HRS methods.” Kaiser v. State, 609 So. 2d 768, 770 (Fla. 2d DCA 1992). In fact, those officers involved in the administration of the breath test need not “stare fixedly at the defendant for the entire observation period to achieve substantial compliance.” Dep’t of Highway Safety & Motor Vehicles v. Farley, 633 So. 2d 69, 71 (Fla. 5th DCA 1994).

Once the trial court determines substantial compliance with the applicable administrative rules, the breath test would be admissible. However, the question of whether the breath test operator was able to make certain that the defendant “did not ingest any substance or regurgitate during the observation period is an issue going to the weight of the evidence presented. As such, this is a question to be determined by the jury, rather than a matter of law to be decided by the court.” Kaiser, 609 So. 2d at 769.

APPROVED BREATH TEST METHODS AND INSTRUMENTS IN FLORIDA

The approved breath test method for evidentiary breath testing is Infrared Spectroscopy, also known as Infrared Light Absorption. The approved breath test instrument make and model is the CMI, Inc. Intoxilyzer 8000.

The breath test operator shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test. This provision shall not be construed to otherwise require an additional twenty (20) minute observation period before the administering of a subsequent sample.

When operating an Intoxilyzer 8000 instrument, a breath test operator shall conduct a breath test in accordance with Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37, and the results of the test shall be recorded on the Breath Alcohol Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38.

See Florida Administrative Code, 11D-8.003 Approval of Breath Test Methods and Instruments

See Florida Administrative Code, 11D-8.007 Approved Breath Test Instruments – Access, Facility Requirements, Observation Period, and Operational Procedures.

OPERATIONAL PROCEDURES FOR THE INTOXILYZER 8000 – FORM 37

In Florida, the Breath Test Operator must follow these procedures when administering a breath test on the Intoxilyzer 8000:

1. 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.

2. If an external printer is used, FDLE/ATP Form 38 – Breath Alcohol Test Affidavit – Intoxilyzer 8000 will be automatically printed containing all the results.  If no external printer is used, a printout slip containing all the results will be automatically printed. 

  1. Complete FDLE/ATP Form 38 – Breath Alcohol Test Affidavit – Intoxilyzer 8000.

Form 37 (“Operational Procedures for the Intoxliyzer 8000”) is available online at:

https://www.fdle.state.fl.us/Alcohol-Testing-Program/Breath-Testing-Home/Forms.aspx

THE ALCOHOL BREATH TEST AFFIDAVIT

The results of a breath test will be recorded on a “breath test affidavit” which is signed by the breath test operator and notarized by another law enforcement officer. 

Per section 316.1934(5), the affidavit is admissible in evidence under the exception to the hearsay rule in 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:

(a) The type of test administered and the procedures followed;

(b) The time of the collection of the blood or breath sample analyzed;

(c) The numerical results of the test indicating the alcohol content of the blood or breath;

(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and

(e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.

Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.

THE PRESUMPTIONS OF IMPAIRMENT

If the driver provides a breath alcohol sample, certain presumptions may apply. At trial the results of any breath test administered in accordance Florida law, gives rise to the following presumptions:

(a) If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(b) If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

(c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.

The presumptions provided in 316.1934 do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Florida Statutes, section 316.1934 (“Presumption of impairment; testing methods”)

www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/Sections/0316.1934.html 

Florida Standard Jury Instruction in Criminal Cases, No. 28 (DUI)

https://www.floridabar.org/rules/florida-standard-jury-instructions/criminal-jury-instructions-home/criminal-jury-instructions/sji-criminal-chapter-28/

THE MONTHLY AGENCY INSPECTION FOR CALIBRATION

The “agency inspection” of the Intoxlizyer 8000 is “the periodic testing of the calibration and operation of a breath test instrument, including all required preventive maintenance, in accordance with rule 11D-8.006, F.A.C., and performed by a person authorized by the Department.”

Per Florida Law, evidentiary breath test instruments shall be inspected by an agency inspector at least once each calendar month. The agency inspection shall be conducted in accordance with the Agency Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 39, and the results on Agency Inspection Report – Intoxilyzer 8000 FDLE/ATP Form 40. Whenever an instrument is taken out of evidentiary use, the agency shall conduct an agency inspection. The agency shall also conduct an agency inspection prior to returning an instrument to evidentiary use.

The Intoxilyzer 8000 must be inspected each month for accuracy by the “Agency Inspector.” The monthly calibration reports for each Intoxilyzer 8000 can be found online at the Florida Department of Law Enforcement – Alcohol Testing Program website under “Inspection Test and Miscellaneous Electronic Data” or at the following link: https://www.fdle.state.fl.us/Alcohol-Testing-Program/Intoxilyzer-8000-Records/Inspection-Test-Data.aspx 

When performing the monthly agency inspection, the Intoxilyzer 8000 will be considered “in compliance” by the Agency Inspector if the tests fall within the “Acceptable Range” defined as “the results of alcohol reference solutions and dry gas standard analyses which fall within the following ranges at each alcohol vapor concentration: 0.05 g/210L range is 0.045 to 0.055 g/210L; 0.08 g/210L range is 0.075 to 0.085 g/210L; 0.20 g/210L range is 0.190 to 0.210 g/210L.”

See also FAC, Rule 11D-8.006 Agency Inspection of Breath Test Instruments.

THE RULES FOR AN APPROVED BREATH ALCOHOL TEST IN FLORIDA

An “approved breath alcohol test” shall consist of “a minimum of two samples of breath collected within fifteen minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level, on a single Form 38 affidavit. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.”

Evidentiary breath test instruments shall only be accessible to a person issued a valid permit by the Department and to persons authorized by a permit holder. This section does not prohibit agencies from sending an instrument out of evidentiary use to an authorized repair facility or the Department via common carrier transport. Only authorized repair facilities or the Department are authorized to remove the top cover of an Intoxilyzer 8000 evidentiary breath test instrument.

The Intoxilyzer must be located in a secured environment which limits access to authorized persons and will be kept clean and dry. All breath test facilities, equipment and supplies are subject to inspection by the Department.

The breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test. This provision shall not be construed to otherwise require an additional twenty (20) minute observation period before the administering of a subsequent sample.

When operating an Intoxilyzer 8000 instrument, a breath test operator shall conduct a breath test in accordance with Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37, and the results of the test shall be recorded on the Breath Alcohol Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38.

Due to the complexities of DUI cases, it is important to hire an experienced criminal defense attorney to fight your DUI case in St. Johns County, Florida or surrounding areas. If you need an attorney for a driving under the influence case in St. Johns County, Florida contact Mydock Law at (904) 864-3002 for a free consultation.

ERROR MESSAGES ON THE INTOXLIYZER 8000

The following is a list of the error messages that can occur during a breath alcohol test on the Intoxilyzer 8000. Each error message includes a description and the action that the breath test operator must take in response.

  • Interferent Detect
  • Improper Sample
  • Ambient Fail
  • Purge Fail
  • Subject Test Refused
  • No Sample Provided
  • Slope Not Met
  • RFI Detect
  • Sequence Aborted
  • Range Exceeded
  • Control Outside Tolerance
  • Diagnostic Fail
  • Volume Not Met
  • No .020 Agreement
  • Slope Not Level
  • Tank Below Min
  • Disabled Mode

Due to the complexities of DUI cases, it is important to hire an experienced criminal defense attorney to fight your DUI case in St. Johns County, Florida or surrounding areas. If you need an attorney for a driving under the influence case in St. Johns County, Florida contact Mydock Law at (904) 864-3002 for a free consultation.

INTERFERENT DETECT

  • Description: An interfering substance was detected in the breath or control sample OR the calculated result obtained from the detection of light from each filter did not agree. The instrument will display INTERFERENT DETECT, abort the test, print INT* in the results section of the report, and print *INTERFERENT DETECT at the bottom of the results section of the report.
  • Action: The operator must restart the breath test. If INTERFERENT DETECT is again obtained, the subject may need medical attention.

IMPROPER SAMPLE

  • Description: The sample was introduced at the wrong time. The instrument will display IMPROPER SAMPLE, abort the test, print IPS* in the results section of the report, and print *IMPROPER SAMPLE at the bottom of the results section of the report.
  • Action: The operator must restart the breath test and ensure that the subject provides a breath sample only when the instrument displays PROVIDE SAMPLE NOW.

AMBIENT FAIL

  • Description: The instrument was not able to clear the sample chamber during the air blank prior to a diagnostic check, breath sample or control sample. The instrument will display AMBIENT FAIL, abort the test, print AMB* in the results section of the report, and print *AMBIENT FAIL at the bottom of the results section of the report.
  • Action: The operator must clear the immediate area of possible contaminants and restart the breath test. If AMBIENT FAIL is again obtained, the operator should contact their agency inspector for further instructions.

PURGE FAIL

  • Description: During the air blank after a breath or control sample, the instrument was not able to successfully clear the sample chamber of a breath or control test sample. The instrument will display PURGE FAIL, abort the test, print PUR* in the results section of the report, and print *PURGE FAIL at the bottom of the results section of the report.
  • Action: The operator must restart the breath test. If PURGE FAIL is again obtained, the operator should contact their agency inspector for further instructions.

SUBJECT TEST REFUSED

  • Description: The operator pressed the “R” key on the keyboard when the instrument displayed PROVIDE SAMPLE NOW. The instrument will display SUBJECT TEST REFUSED, abort the test, print REF* in the results section of the report, and print *SUBJECT TEST REFUSED at the bottom of the results section of the report
  • Action: A law enforcement officer or correctional officer must complete the applicable refusal affidavit.

NO SAMPLE PROVIDED

  • Description: The subject did not provide a breath sample into the instrument within the three (3) minute time period allowed for each breath sampling process OR the subject did not provide a breath sample for at least one (1) second. The instrument will display NO SAMPLE PROVIDED, print NSP* in the results section of the report, and *NO SAMPLE PROVIDED at the bottom of the results section of the report.
  • Action: If NO SAMPLE PROVIDED is obtained on the first breath sample, the instrument will continue to request two more samples. If the subsequent samples are valid, the breath test is complete. 
  • Action: If NO SAMPLE PROVIDED is obtained on the second breath sample, the instrument will continue to request a third breath sample. If the first and third breath samples are valid, the breath test is complete. • If NO SAMPLE PROVIDED is obtained on the first and second breath samples, the instrument will discontinue the breath test. The operator must restart the breath test if the subject is going to provide samples.

SLOPE NOT MET

  • Description: The sample provided did not meet the slope requirements of a minimum acceptable breath sample and there was a negative slope (the alcohol concentration from the subject sample decreased). The instrument will display SLOPE NOT MET, abort the test, print SNM* in the results section of the report, and print *SLOPE NOT MET at the bottom of the results section of the report.
  • Action: The operator must restart the test.

RFI DETECT

  • Description: The instrument detected radio frequency interference of a sufficient strength and frequency to interfere with the breath test or control test. The instrument will display RFI DETECT, abort the test, print RFI* in the results section of the report, and print *RFI DETECT at the bottom of the results section of the report.
  • Action: The operator must clear the room and immediate area of any radios or cell phones and  restart the breath test.

SEQUENCE ABORTED

  • Description: The “Start Test” button was pressed during an operational function. The instrument will display SEQUENCE ABORTED, abort the test, print ABT* in the results section of the report, and print *SEQUENCE ABORTED at the bottom of the results section of the report.
  • Action: The operator must restart the breath test (only if this action was accidental).

RANGE EXCEEDED

  • Description: The value of the breath sample provided exceeded the reporting range of the instrument (0.600 g/210L). The instrument will display RANGE EXCEEDED, abort the test, print RGE* in the results section of the report, and print RANGE EXCEEDED at the bottom of the results section of the report.
  • Action: The operator must restart the breath test. If RANGE EXCEEDED is again obtained, the subject may need medical attention.

CONTROL OUTSIDE TOLERANCE

  • Description: The dry gas standard control test value was out of range. The correct range for the control test is 0.075 to 0.085 g/210L. The instrument will display CONTROL OUTSIDE TOLERANCE, abort the test, print an * by the control test result in the results section of the report, and print *CONTROL OUTSIDE TOLERANCE at the bottom of the results section of the report.
  • Action: The Breath Test Operator must restart the test. Recommendations: Remove the subject from the testing area and allow the area to “air out” before beginning another test. Keep the subject away from the breath tube when samples are not being obtained. If CONTROL OUTSIDE TOLERANCE is again obtained, the operator should contact their agency inspector for further instructions.

DIAGNOSTIC FAIL

  • Description: One or more of the diagnostic tests failed. The instrument will display DIAGNOSTIC FAIL, abort the test, print FAIL* in the results section of the report and print *DIAGNOSTIC FAIL at the bottom of the results section of the report.
  • Action: The Breath Test Operator must restart the test. If DIAGNOSTIC FAIL for the same failure is again obtained, the operator should contact their agency inspector for further instructions.

VOLUME NOT MET

  • Description: The breath sample provided did not meet the minimum breath sample requirement of 1.1Liter. The instrument will display VOLUME NOT MET, print VNM* in the results section of the report, and print *VOLUME NOT MET (0.XXX Breath Sample Not Reliable for Quantitative Breath Alcohol Level) at the bottom of the results section of the report.
  • Action: If VOLUME NOT MET is obtained on the first breath sample, the instrument will continue to request two more samples. If the subsequent samples are valid, the breath test is complete. • If VOLUME NOT MET is obtained on the second breath sample, the instrument will continue to request a third breath sample. If the first and third breath samples are valid, the breath test is complete. • If VOLUME NOT MET is obtained on the first and second breath samples, the instrument will discontinue the breath test. The operator must restart the breath test.

NO .020 AGREEMENT

  • Description: There was not 0.020 g/210L agreement between any two of the three samples of breath obtained. The instrument will display NO .020 AGREEMENT, print a * by the breath sample results, and print *NO .020 AGREEMENT at the bottom of the results section of the report.
  • Action: The operator must restart the breath test.

SLOPE NOT LEVEL

  • Description: The sample provided did not meet the slope requirements of a minimum acceptable breath sample and the slope of the breath sample being provided is still rising and did not level off. The instrument will display SLOPE NOT LEVEL, print SNL* in the results section of the report, and print *SLOPE NOT LEVEL (0.XXX Breath Sample Not Reliable for Quantitative Breath Alcohol Level) at the bottom of the results section of the report.
  • Action: If SLOPE NOT LEVEL is obtained on the first breath sample, the instrument will continue to request two more samples. If the subsequent samples are valid, the breath test is complete. • If SLOPE NOT LEVEL is obtained on the second breath sample, the instrument will continue to request a third breath sample. If the first and third breath samples are valid, the breath test is complete. • If SLOPE NOT LEVEL is obtained on the first and second breath samples, the instrument will discontinue the breath test. The operator must restart the breath test.

TANK BELOW MIN

  • Description: The gas pressure of the dry gas standard cylinder is under 25 psi. The instrument cannot be used until the dry gas standard cylinder is changed.
  • Action: The operator or Agency Inspector will need to change the dry gas standard cylinder and record the new lot number and expiration date. A breath test can then be conducted.

DISABLED MODE

  • Description: The agency inspector did not upload the agency inspection, OR there are 150 breath tests that need to be uploaded, OR an agency inspection needs to be completed
  • Action: The agency inspector or department inspector must upload the stored agency inspection and/or breath tests OR an agency inspection needs to be conducted before the instrument may be used to conduct breath tests.

https://www.fdle.state.fl.us/Alcohol-Testing-Program/Breath-Testing-Home/Links/2015-Curricula-851-BTO-Course

Due to the complexities of DUI cases, it is important to hire an experienced criminal defense attorney to fight your DUI case in St. Johns County, Florida or surrounding areas. If you need an attorney for a driving under the influence case in St. Johns County, Florida contact Mydock Law at (904) 864-3002 for a free consultation.

REFERENCES

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0316/Sections/0316.193.html  

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0316/Sections/0316.1932.html 

https://www.flrules.org/gateway/ChapterHome.asp?Chapter=11d-8

https://www.fdle.state.fl.us/Alcohol-Testing-Program/Breath-Testing-Home/Forms.aspx

Attorney for Driving Under the Influence arrest in St. Augustine or St. Johns County

Attorney Travis Mydock is a Board-Certified Specialist in Criminal Trial Law by The Florida Bar. His practice is limited to DUI and criminal defense. 

Mydock Law is a boutique criminal defense law firm located in St. Augustine, Florida. The firm frequently defends DUI cases in the Seventh Judicial Circuit: Flagler, Putnam, St. Johns, and Volusia counties; the Fourth Judicial Circuit: Clay and Duval counties; and the Eighth Judicial Circuit: Alachua, Bradford, and Baker counties.

Attorney Mydock has vast experience in all types of Florida DUI/DWI cases and related issues. Mydock Law frequently defends Florida DUI/DWI cases in the following cities: 

St. Johns County DUI/DWI
St. Augustine DUI/DWI
Ponte Vedra Beach DUI/DWI
Ponte Vedra DUI/DWI
Julington Creek DUI/DWI
Nocatee DUI/DWI
Silverleaf DUI/DWI
Fruit Cove DUI/DWI
Cresent Beach DUI/DWI
Hastings DUI/DWI

Flagler DUI/DWI
Palm Coast DUI/DWI
Flagler Beach DUI/DWI
Bunnell DUI/DWI

Duval County DUI/DWI
Jacksonville DUI/DWI
Jacksonville Beach DUI/DWI

Clay County DUI/DWI
Green Cove Springs DUI/DWI

Putnam County DUI/DWI
Palatka DUI/DWI
Interlachen DUI/DWI

Volusia County DUI/DWI
Ormond Beach DUI/DWI
Daytona Beach DUI/DWI
Bike Week DUI/DWI
Motorcycle DUI/DWI

If you have been arrested for DUI in St. Augustine or surrounding areas, call Mydock Law at (904) 864-3002 for a free and confidential case evaluation. 

Revised March 26, 2024

Legal Disclaimer: The information you obtain on this site is not, nor is it intended to be, legal advice. You should always consult an attorney for specific legal advice regarding your individual situation. Review of this website does not create an attorney-client relationship.