After an arrest for DUI in Florida, the arresting officer will usually ask the driver to submit to a breathalyzer test. Florida uses the a machine manufactured by a company in Kentucky called CMI, Inc. Beginning in 2006, Florida moved to the Intoxilyzer 8000. Every county in the State of Florida has at least one Intoxilyzer 8000 machine. The Hillsborough County Sheriff’s Office in Tampa, FL, has more than 5 machines.
The Tampa DUI attorneys at the Sammis Law Firm are currently engaged in litigation to fight the admission of breath test results for our clients charged with DUI based on the failure to disclose the source code of the machine, the failure to allow independent testing of the machine, the failure of HCSO to follow the proper rules during routine annual and monthly inspections, and motions to completely dismiss the DUI charges based on due process violations involving the HCSO’s bad faith in destroying more than three years worth of digital video evidence showing serious problems with monthly and annual inspections at the central breath testing facility at the Orient Road Jail.
Mouth Alcohol and Florida’s Intoxilyzer 8000
One of the reason that Florida used for moving to the Intoxilyzer 8000 was that it claimed to have a superior method of telling the difference between mouth alcohol and breath alcohol.
“Mouth alcohol” refers to the presence of any alcohol in the esophagus or mouth. The presence of even tiny amounts of mouth alcohol during a breath test can lead to a grossly exaggerated reading that is not accurate or reliable. The premise behind the breathalyzer is that it assumes that presence of any alcohol comes from the lungs.
In fact, in determining the reading, the machine’s software makes internal calculations that multiply the amount of alcohol by 2100. Therefore, even a very small amount of alcohol in the mouth that is presence in the breath blown into the machine has a huge impact on the reading.
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Intoxilyzer 8000′s Problem with Mouth Alcohol – Even the Inspector is Blowing Over!
Problems with the instruments in Hillsborough County that are even causing the Agency Inspector to blow over the legal limit during routine monthly inspections.
How Often is Mouth Alcohol Present During a Breath Test?
Mouth alcohol can be introduced into the breath test in any number of ways including the following:
- Burping; or
Any of these actions can bring the vapor from alcoholic beverages in the stomach up into the esophagus or mouth. Certain medical conditions can also cause mouth alcohol to be present during the DUI breath test, including GERD, acid reflux, gastric distress or a hiatal hernia.
The arresting officer (even assuming that he is watching the subject carefully) may not notice any of these problems that can cause mouth alcohol. In many cases, even when the officer is aware that the subject has burped or has one of the medical conditions, the officer may just go forward with the test anyway and not document the potential problem.
Even more troubling, individuals arrested for DUI who have dental work such as dental bridges, dental caps or crowns or dentures can trap small amounts of alcohol in the mouth for hours. Additionally, using a breath spray or mouth wash such as Binaca or Listerine introduces alcohol into the subjects mouth that can be trapped there in higher concentrations than when the subject consumes an alcoholic beverage.
The manufacturer of Florida’s breathalyzer, the Intoxilyzer 8000, claims that the machines uses a slope detector to differentiate between mouth alcohol and breath alcohol. The slope detector is suppose to work by measuring the rate of change in the alcohol reading. If the rate of change is too rapid, then the the slope detector is supposed to flag the results to show that the alcohol may be coming from mouth alcohol and not the more sought after breath from the deep lungs.
Preventing False and Inaccurate Test Results
If the slope detection does not work properly then it is impossible to determine whether any test result is accurate or reliable. Considerable evidence shows that the Intoxilyzer 8000′s slope detector does not work. Stephen Daniels with DUI undo Consultants, LLC, in Pinellas County, FL, performed an experiment which shows just how terrible the slope detector is as distinguishing mouth alcohol from breath alcohol. We have hired Mr. Daniels as an expert witness or consultant in many of our DUI cases. Although the quality of the video is not that great, the result of the experiment is pretty dramatic.
The Intoxilyzer 8000 Mouth Alcohol Experiment
Both breath samples involve only mouth alcohol according to Mr. Daniels, and it certainly does NOT appear that he is intoxicated (despite the shaky camera work.)
For the first breath same, the Intoxilyzer 8000 shows a breath alcohol reading of 0.0263 which is more than three times the legal limit. The breath volume for that sample was 1.570 which is just above the minimum amount of breath required by the Florida’s version of the software which requires 1.1 liters of breath.
The second breath sample gave a false reading of 0.547 with a breath volume of 1.218 litters of breath. That breath alcohol reading is more than 6 times the legal limit. If the breath test machine gave an accurate reading, you would expect Mr. Daniels to be dead from alcohol poisoning.
But the point of this experiment is that the machine does not work as advertised. No reading can be trusted if the presence of mouth alcohol can cause such tremendously inaccurate readings.
Stephen Daniels then does the same experiment at the Florida Association of Criminal Defense Lawyer (FADCL) Blood, Breath & Tears Seminar in Orlando, Florida on or around September 23 of 2009. The first sample shows a 0.00 reading proving that he had not consumed any alcohol. For the second sample, he rinsed his mouth with Corona Light Beer. When he gave the second sample, he had a BrAC reading of 0.072 with a Breath Volume of 1.171.
As this experiment shows, there are serious problems with the Intoxilyzer 8000 machines used in Florida. Without independent test, it is extremely difficult for DUI attorneys to show the extent of these problems. Obviously, the manufacturer of the machines and the FDLE want to keep the machines away from any independent testing. Criminal defense attorneys have an obligation to pursue relief with the courts which may be the only way to force independent testing of these machines to show the full extent of the problems.