If you blew into a broken machine, how would you know?

Unfortunately, the answer is: probably not.  Yet Florida Courts allow prosecutors to argue to the jury that your breath test result is scientific evidence.   And if the result is over a .08, they can argue that you are guilty of DUI based only on the breath test result alone. Even if you aced the filed sobriety exercises

Luckily, there are a litany of defenses to the breath test machine that your Tampa DUI Attorney can utilize to win your case at trial or potentially leverage a reckless driving reduction on your behalf. And the vast majority result from the prosecutor’s dificult burden of proving substantial compliance with the Florida Administrative Regulations regarding the Breath Machine.

Some Criticial Substantial Compliance Questions:

Below are some important questions your St. Pete DUI Attorney must consider in every breath test result case.  If the State cannot prove substantial compliance with these rules, then your DUI Lawyer can move to throw the breath tests results out of court.  This can be the difference in winning or losing your case.

Was the Monthly Inspection Performed?

Florida Administrative Code 11D-8.006(1) requires that the breath test machine be inspected monthly, according to Rule.  If the agency missed the required inspection, or if the machine failed the inspection, then your results may be suppressed.

Obviously, it is important for your DUI lawyer to check both the month before and the month after your breath test sample to see if they both comply and past muster.

Was the Annual Inspection Performed?

The State must also be able to show substantial compliance with the the annual agency inspection to be sure that the test passed muster.  These records should be checked in every matter to make sure the breath test machine you were subjected to has passed the required tests.

Did the Breath Test Operator Have a Valid Operator’s Permit

It does not take much to obtain a breath test operator’s permit.  As long as you are 18 years old and you pass the required minimal test, you can get a certificate.  But the rules require the operator to renew his breath test permit every four years.  Has the DUI cop that took your breath test let his permit expire?  Did he have a proper permit to begin with?

In every case with a breath test result, we do a public records request to see if both the breath test operator and the agency inspector have the proper certification.  There is ongoing litigation right now, primarily in Pinellas and Pasco Counties, where the breath test operators and agency inspectors have let their operator’s permits lapse intentionally.  It is imperative if you are in one of these counties that you bring this issue up with your breath test dui lawyer.

Were the Gases Used in the Breath Machine Expired?

The machine requires certain gas canisters to work.  They have expiration dates.  Your Tampa DUI Attorney can order the records to make sure the proper components are not expired.

Was the Sample Taken With A Proper 20 Minute Observation Period?

When did you provide the breath test sample? Was it after the officer had observed you for 20 minutes to make sure you did not burp or belch or regurgitate?  If he did not reasonably ensure this happened, then he did not substantially comply with the rules, and the results may be tossed out of court. Did he let you go to the bathroom during the 20 minute period preceding the test?  Did he do paperwork?  While many of the Tampa Police Department and Hillsborough DUI guys are sticklers for the observation period, some officer’s are bored and may even walk away and leave the client alone for several minutes before the breath test. This can lead to your breath test being thrown out of court.

Flow Sensor Issues with the Machines?

The flow sensor on the Florida breath test machines is intended  to measure both flow and breath volume during breath testing.  Accurately measuring the flow and breath volume ensures the collection of a proper sample of breath for analysis.  Without routine inspections of the instrument’s flow sensors, the performance of the flow sensor cannot be validated.

In the last couple of years, problems with the flow sensors in Florida’s breath test machines has been popping up around the State.  Hillsborough County has already taken multiple machines offline and sent them back toi CMI (the manufacturer) for repair.

In certain cases, we can retain experts to complete a thorough audit of the particular machine our client tested on to see if the flow sensor is operating appropriately.  A poor flow sensor may be grounds to throw out the breath test result.

Talk to a St. Petersburg DUI Lawyer to Discuss Your Defenses to The Breath Test Machine

Call Denmon & Denmon Trial lawyers today to discuss your breath test results and discover your breath test defenses with an experienced DUI attorney at 813-554-3232.  Ask to speak directly to a DUI Attorney.