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Intoxilyzer Not Properly Maintained: Florida Court Throws Out Breath Test Results
State v. Kilburn demonstrates why machine maintenance records prove critical when challenging DUI breath test evidence in Florida
| KEY RULING: COURT EXCLUDES BREATH TEST RESULTS In State v. Kilburn, Marano, and Depauw, the Florida Second District Court of Appeal upheld a trial court ruling that threw out Intoxilyzer 8000 breath test results. Specifically, the machine had undergone an unauthorized repair—FDLE inspectors replaced the breath tube even though only the manufacturer or an approved repair facility may perform such repairs under Florida law. |
Why Breath Test Machine Maintenance Matters
When police arrest someone for DUI in Florida, prosecutors typically rely on the Intoxilyzer 8000 to prove impairment. Indeed, this breath testing machine serves as the gold standard for measuring blood alcohol content. However, its results depend entirely on the maintenance and calibration procedures that keep it accurate.
If technicians fail to properly maintain the Intoxilyzer, courts can exclude its results from evidence. As a result, this exclusion can mean the difference between a conviction and a dismissal.
| FLORIDA BREATH TEST REQUIREMENTS Under Florida Administrative Code Rule 11D-8, the State must ensure the Intoxilyzer 8000: • Receives inspection at least once per calendar month by FDLE • Undergoes repairs only by the manufacturer or approved repair facilities • Operates under a certified breath test operator • Follows a 20-minute observation period before testing Consequently, failure to follow any of these requirements can provide grounds to exclude the breath test results. |
The Case: State v. Kilburn, Marano, and Depauw
In this consolidated appeal, three DUI defendants challenged their breath test results on identical grounds: specifically, the Intoxilyzer 8000 used to test them had undergone an unauthorized repair.
| CASE SUMMARY: STATE V. KILBURN, MARANO, AND DEPAUW Court: Florida Second District Court of Appeal Issue: Whether courts should exclude Intoxilyzer 8000 results when FDLE inspectors performed an unauthorized repair (replacing the breath tube) Defense Argument: Only the manufacturer or an approved repair facility may perform repairs under Florida Administrative Code Holding: Trial court correctly excluded the breath test results because technicians failed to properly maintain the machine under Florida law Result: Prosecutors lost the ability to use breath test results as evidence |
The critical fact proved simple: FDLE inspectors replaced the breath tube on the Intoxilyzer 8000. However, under Florida’s rules, only the manufacturer or an approved repair facility may perform such repairs. Because the repair violated Florida’s administrative rules, the court concluded that technicians had not properly maintained the machine. Therefore, the presumption of accuracy that normally applies to breath test results disappeared.
| ⚠ WHY THIS MATTERS FOR DUI DEFENDANTS Breath test results carry legal weight only if the State proves technicians handled the machine according to strict procedures. If the State cannot demonstrate proper maintenance of the Intoxilyzer, the presumption of accuracy disappears. Consequently, this failure gives defense attorneys a strong basis to challenge the evidence—and potentially get DUI charges reduced or dismissed. |
Common Grounds to Challenge Intoxilyzer Results
The Kilburn case focused on unauthorized repairs. However, defense attorneys can challenge Intoxilyzer 8000 results on many other grounds in Florida DUI cases:
| Challenge Type | What Defense Looks For |
| Unauthorized Repairs | Any repairs someone other than the manufacturer or approved facility performed (as in Kilburn) |
| Inspection Failures | FDLE failed to inspect the machine monthly; gaps exist in inspection records |
| Calibration Issues | Machine produced inaccurate results during calibration checks |
| Operator Certification | Officer’s breath test operator certification had expired or lacked proper authorization |
| Observation Period | Officer failed to properly conduct the 20-minute observation period before testing |
| Chain of Custody | Documentation gaps exist; records fail to show who had access to machine |
| Radio Frequency Interference | Electronic devices in the testing area may have affected readings |
| Mouth Alcohol Contamination | Recent belching, vomiting, or dental work may have affected results |
How an Experienced DUI Attorney Investigates Breath Test Evidence
At The Brancato Law Firm, P.A., we examine every detail of DUI cases. Specifically, we investigate the complete maintenance and inspection history of the Intoxilyzer 8000 used to test you. Furthermore, this investigation includes:
- First, requesting all maintenance logs and repair records for the specific machine
- Second, reviewing FDLE inspection reports for compliance with Florida Administrative Code
- Third, verifying the breath test operator held valid certification at the time of testing
- Additionally, examining video evidence to confirm officers followed the 20-minute observation period
- Moreover, identifying any unauthorized repairs or gaps in the maintenance chain
- Finally, deposing FDLE inspectors and breath test operators when necessary
As a result, this detailed investigation frequently reveals issues that provide grounds to suppress breath test evidence—just as the defense attorneys accomplished in Kilburn.
| DEFENSE STRATEGY: CHALLENGE THE MACHINE, NOT JUST THE READING Many DUI defendants assume breath test results stand as unassailable evidence. However, they do not. Indeed, the Kilburn case proves that procedural failures in machine maintenance can result in complete exclusion of breath test evidence. Without the breath test, prosecutors often face a much weaker case—sometimes too weak to pursue. |
Frequently Asked Questions: Intoxilyzer Maintenance and DUI Defense
Can courts throw out breath test results if technicians failed to properly maintain the Intoxilyzer?
Yes. As the Kilburn case demonstrates, Florida courts will exclude Intoxilyzer 8000 results if the State cannot prove technicians maintained the machine according to Florida Administrative Code requirements. Specifically, this includes proper inspections, authorized repairs, and calibration procedures.
What qualifies as an “unauthorized repair” on an Intoxilyzer 8000?
Under Florida law, only the manufacturer or an approved repair facility may perform repairs on the Intoxilyzer 8000. In Kilburn, for example, FDLE inspectors replaced the breath tube themselves—a repair they lacked authorization to perform. Because this violated Florida’s rules, the court excluded the breath test results.
How often must FDLE inspect the Intoxilyzer 8000 in Florida?
Florida Administrative Code Rule 11D-8 requires FDLE to inspect the Intoxilyzer 8000 at least once per calendar month. Therefore, if gaps exist in the inspection records—or if officers used the machine during a period when FDLE missed inspections—this can provide grounds to challenge the results.
What is the 20-minute observation period?
Before administering a breath test, officers must observe the subject for at least 20 minutes. During this time, they must ensure the subject does not eat, drink, smoke, vomit, or put anything in their mouth. Essentially, this prevents mouth alcohol contamination from affecting the results. Consequently, failure to properly conduct this observation can provide grounds to challenge the test.
Can I request the maintenance records for the Intoxilyzer used in my case?
Yes. Your defense attorney can subpoena all maintenance logs, repair records, and inspection reports for the specific Intoxilyzer 8000 that officers used to test you. Indeed, these records prove essential for identifying potential grounds to challenge the breath test results.
What happens if the court excludes breath test results in my DUI case?
Without breath test results, prosecutors must rely on other evidence—such as field sobriety tests, officer observations, and video footage. As a result, this often leaves them with a significantly weaker case. Depending on the remaining evidence, the State may reduce charges or dismiss them entirely.
Does the officer’s certification affect breath test validity?
Yes. The breath test operator must hold valid certification at the time of testing. Therefore, if the officer’s certification had expired or the officer obtained it improperly, this can provide grounds to challenge the breath test results.
Should I refuse a breath test in Florida?
Refusing a breath test in Florida carries significant consequences. Specifically, implied consent laws trigger automatic license suspension and a separate charge apart from the DUI. However, every case presents different circumstances. If police have already arrested you for DUI—whether you took the test or refused—contact an experienced DUI defense attorney immediately to discuss your options.
| Arrested for DUI? The Breath Test May Not Be As Reliable As Prosecutors Claim. Call (813) 727-7159 for a Confidential Consultation The Brancato Law Firm, P.A. 620 E. Twiggs Street, Suite 205, Tampa, FL 33602 Serving Hillsborough, Pinellas, and Pasco Counties |
| ABOUT ATTORNEY ROCKY BRANCATO With over 25 years of criminal defense experience, Tampa Attorney Rocky Brancato has handled countless DUI cases and understands how to challenge breath test evidence. As former Chief Operations Officer of the Hillsborough County Public Defender’s Office, he knows the technical requirements prosecutors must meet—and how to expose failures in machine maintenance, operator certification, and testing procedures. |
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