Seminole County Breath Test Machine Issue (Intoxilyzer 8000)

Seminole County has 4 Intoxilyzer 8000's and this article will discuss serial numbers 80-001271 and 80-001272. The other 2 machines have a similar pattern but I have not had time to compile the data. Each month both machines are tested with the same three control solution lot numbers. Three tests are performed sometimes just minutes apart by the same breath test inspector. The machines test a .05 G/210L control solution a .08 G/210L control solution and a .20 G/210L control solution during the monthly inspection. I have reviewed the monthly inspections from January through September and compiled the data. The .05 G/210L shows an average variation of 6.6% between the two machines on the same .05 G/210L control solution lot # 200903B. The inaccuracy was most pronounced on 3/30/2010 when a 10% difference was observed and again on 6/30/2010 when a 10% difference was observed on 2 tests. The .08 G/210L shows an average variation of 6.12% between the two machines on the same .08 G/210L control solution lot # 200908B. A maximum variation was observed on the 6/30/2010 test when an 8.75% difference occurred twice on the .08 solution. The .20 G/210L shows an average variation of 7% between the two machines on the same .20 G/210L control solution lot # 200908C. A maximum variation was observed on the 9/29/2010 test when a 9% difference occurred on the .20 solution. This is disturbing considering that according to FDLE both machines are compliant. What is even more disturbing is that 80-001272 always reads lower then 80-1271 and has only been used once since October of 2009. It would appear that Seminole County prefers to use their +1 machine. I refer to it as the +1 because it appears to add a drink to your BAC free of charge (except for the DUI). The discrepancies have continued at least into November. What drives this issue home is that during the Sarasota source code litigation a document was released from CMI stating that the machine would be accurate within +/- .003 or 3% whichever is greater. With as much as a 10% difference in control tests the machines are not performing within the specifications set out by CMI. It appears that Seminole County has found a way to resolve this issue. It is pretty clever. They either stopped testing 80-001272 or stopped recording it in the public records. The last recorded test for 80-001272 is 11/1/10 @ 21:56. Intoxilyzer 80-001271 has been tested for accuracy 4 times since 11/1/10. It appears that Seminole County finally found out about the problem and eliminated it by either getting rid of or no longer testing the machine that reads lower. If you are arrested for a DUI contact Seminole County DUI attorney Kevin J. Pitts. If you are arrested for a Volusia County DUI go to Daytona Beach DUI attorney. The Law Offices of Kevin J. Pitts has offices in Sanford and Daytona Beach.

Enhanced Florida DUI Penalties ( BAC >.15% Or Child In The Car).

Florida First DUI BAC Greater Than .15% or Minor In The Vehicle

Fine: between $1000 and $2000

Driver’s License Revocation:180 days up to 1 year

Business Purpose Only: Must complete A DUI school and apply to department for hearing for possible hardship reinstatement. Mandatory ignition interlock device for up to six months for BAL of .15

DUI School For License Requirements: Must complete DUI school before hardship reinstatement. Customers who wait out revocation period before reinstatement need only show proof of enrollment or completion to become re-licensed. If customer enrolls and is reinstated after revocation period expires,failure to complete the DUI school within 90 days after reinstatement will result in license cancellation; the driver cannot then be re-licensed until DUI school is completed.

Community Service: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required

Probation: First conviction, total period of probation and incarceration may not exceed 1 year

Jail: Not more than 9 months

Conditions for Release From Jail: The person is no longer under the influence and; the person's normal faculties are no longer impaired, the person's blood/breath alcohol level is lower than 0.05; or eight hours have elapsed from the time the person was arrested.

Impound or Immobilization: 10 days that must not occur during incarceration

Refusal of Blood/Breath or Urine: Refusal: Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings. Second or subsequent refusal (even if the prior DUI is dropped or reduced) is a misdemeanor of the first degree. Driver License Suspension Periods: First refusal, suspended for 1 year. Second or subsequent refusals, suspended for 18 months.

Administrative Suspension: First Suspension for Driving With an Unlawful Alcohol Level (.08 or above): 6 months. First Suspension for Refusal to Submit to Breath, Urine or Blood Test: 1 year. The suspension is effective immediately The officer will issue the driver a temporary permit valid for 10 days from the date of arrest, provided the driver is otherwise eligible. 

Review Hearings For Administrative Suspensions: Department of Highway Safety and Motor Vehicles may upon the request of the driver to conduct formal and informal reviews for the purpose of sustaining, amending or invalidating administrative suspensions and disqualifications. The decisions of the department shall not be considered in any trial for a violation of s. 316.193, F.S., nor shall any written statement submitted by a person in his request for review be admissible into evidence against him in any such trial. The disposition of any related criminal proceedings shall not affect a suspension/disqualification.

Administrative Suspension Business or Employment Reinstatement: Must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.

Adjudication and Sentencing: Judges are prohibited from deviating from the administrative suspension/revocation periods mandated by statute. The courts are prohibited from withholding adjudication in DUI cases; or from reducing a DUI charge if the defendant's blood alcohol was .15 or greater. If you are arrested for a DUI in Volusia County go to Daytona Beach DUI attorney, Daytona Beach criminal defense attorney. If you are arrested for a DUI in Seminole County go to Seminole County DUI attorney, Seminole County criminal defense attorney. Offices at 209 West First Street, Sanford, FL 32771 and 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114. For free DUI information and sample forms go to Free DUI information and sample forms

Florida First DUI Penalties (without enhancement).

First Offense Florida DUI Penalties BAC below .15%

Fine: between $500 and $1,000 / a reduction to reckless driving reduces the mandatory fine but the fine often stays the same.

Driver’s License Revocation: minimum mandatory 180 days to a year/ reckless driving has no mandatory criminal license suspension (the administrative suspension can still be an issue when a DUI is reduced to reckless)

Business Purpose Only: Must complete DUI school, apply to department for hearing for possible hardship reinstatement.

DUI School For License Requirements: Must complete DUI school before hardship reinstatement. Customers who wait out revocation period before reinstatement need only show proof of enrollment or completion to become re-licensed. If customer enrolls and is reinstated after revocation period expires, failure to complete the DUI school within 90 days after reinstatement will result in license cancellation; the driver cannot then be re-licensed until DUI school is completed./ The DUI school can be ordered by the Judge in an alcohol related reckless. It is not mandatory but if your license is administratively suspended it is required for reinstatement.

Community Service: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required if allowed by the Judge./ 50 hours of community service is not mandatory with a reckless driving but is often still a requirement.

Probation: First conviction, total period of probation and incarceration may not exceed 1 year.

Jail: Not more than 6 months

Conditions for Release: The person is no longer under the influence and; the person's normal faculties are no longer impaired, the person's blood/breath alcohol level is lower than 0.05; or eight hours have elapsed from the time the person was arrested.

Impound or Immobilization: 10 days that must not occur during incarceration./ Impound is generally part of a reckless driving sentence.

Refusal of Blood, Breath or Urine: Refusal: Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings. Second or subsequent refusal (even if the prior DUI is dropped or reduced) is a misdemeanor of the first degree. Driver License Suspension Periods: First refusal, suspended for 1 year. Second or subsequent refusals, suspended for 18 months./ The reduction to reckless driving does not help the administrative suspension. It does help prevent the potential permanent revocation for 4 criminal DUI convictions.

Administrative Suspension: First Suspension for Driving With an Unlawful Alcohol Level (.08 or above): 6 months. First Suspension for Refusal to Submit to Breath, Urine or Blood Test: 1 year. The suspension is effective immediately The officer will issue the driver a temporary permit valid for 10 days from the date of arrest, provided the driver is otherwise eligible./ A reduction to reckless driving, a complete dismissal or a Nolle Prosequi by the state does not help you with the administrative suspension. The only way to prevent the administrative suspension is to request a formal review within 10 days and successfully challenge the suspension in a formal or informal hearing.

Review Hearings For Administrative Suspensions: Department of Highway Safety and Motor Vehicles may upon the request of the driver to conduct formal and informal reviews for the purpose of sustaining, amending or invalidating administrative suspensions and disqualifications. The decisions of the department shall not be considered in any trial for a violation of s. 316.193, F.S., (DUI) nor shall any written statement submitted by a person in his request for review be admissible into evidence against him in any such trial. The disposition of any related criminal proceedings shall not affect a suspension/disqualification.

Administrative Suspension Business or Employment Reinstatement: Must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.

Adjudication and Sentencing: Judges are prohibited from deviating from the administrative suspension/revocation periods mandated by statute. The courts are prohibited from withholding adjudication in DUI cases; or from reducing a DUI charge if the defendant's blood alcohol was .15 or greater. If you are arrested for a DUI in Volusia County go to Daytona Beach DUI attorney, Daytona Beach criminal defense attorney. If you are arrested for a DUI in Seminole County go to Seminole County DUI attorney, Seminole County criminal defense attorney. Offices at 209 West First Street, Sanford, FL 32771 and 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114.

For free DUI information and sample forms go to Free DUI information and sample forms.

Should I Take The Breath Test After A DUI Arrest?

As a DUI attorney this is one of the most common questions I hear. The answer is it depends. Many people seem frustrated with this but I will explain. It depends on 4 things 1) location 2) amount you had to drink 3) what you are trying to avoid 4) your prior history. 

1) The location of your arrest can make a difference in your decision. This has to do with a couple different issues. Some counties are more lenient on low breath tests. Some counties in Central Florida tend to reward cooperation to some extent. This is done by allowing diversions in some of the counties in Central Florida. Other counties have unwritten policies of when to reduce cases. The prosecutor is not bound by the policy. Other counties claim to not allow equitable reductions. The counties were left out because policies are subject to change. Seminole County has had issues with breath test admissibility and the Seminole County breath test machines have recently registered readings with nearly a 10% variation between machines on control tests. The company that designs the machines (CMI) claims that the machines are accurate within 3% or .003 whichever is greater. If the machine is inadmissible your refusal could be used against you but the breath test result could not. Office policies are subject to change so that should also play a roll in your situation. It is impossible to know which Judge will handle your case prior to arrest so the admissibility cannot be determined prior to making the decision unless the jurisdiction has had the issue addressed on appeal or En banc. For more information about this issue go to Seminole County DUI attorney for my contact information.

2) The amount you had to drink is important to your decision. I always here "I had two drinks all night and didn't know if I would pass so I refused". Blood represents about 7% of the body mass or about 4.5 kg (volume ~ 4.4 liters) in a 64 kg (141 lb) person. Cameron, John R.; James G. Skofronick & Roderick M. Grant.Physics of the Body. Second Edition. Madison, WI: Medical Physics Publishing, 1999: 182. This equals about 149 ounces in a 141lb human. This means that a 141lb human could consume 1.192 ounces of alcohol in an hour. This is basically 2 12 oz. beers assuming 100% absorption and no metabolism by the liver. It gets more complicated when you calculate metabolism, digestion and after multiple hours of drinking the math becomes much more important. Your liver can metabolize approximately 1 drink per hour. The simple math would be 2 drinks in an hour 3 drinks in 2 hours 4 drinks in 3 hours and so on. If you have only consumed 2 drinks the entire night you might want to consider taking the breath test unless you are smaller than 140 lbs., the drinks contained more alcohol than a 12 oz. beer or you have impaired liver function. The defense usually contends that the cutoff is 2 drinks and as a prosecutor you are told that it is more like 4-6 drinks.

3) What you are trying to avoid should play a substantial role in your decision. This sounds like a stupid question but the answer should have a big impact on your decision. If you are trying to avoid losing your driver’s license the breath test might be a better option for you. The odds are stacked against the accused in a DUI. You will face two separate suspensions. After a criminal DUI suspension you are eligible for a hardship immediately as long as the appropriate class in your jurisdiction is completed (counter attack in Seminole and Orange and Alcohol Safety and Education Class in Volusia) on a first DUI. The problem is that the criminal suspension is only half the battle. You will also face an administrative suspension. The administrative suspension can be successfully challenged but they are designed to be difficult. The suspension automatically occurs if a hearing is not requested within 10 days. It is also based on a substantial competent evidence standard. The United States Supreme Court defines “substantial competent evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Pierce v. Underwood, 487 U.S. 552. This is relevant because the first time refusal hard suspension is 90 days. A first time BAC over .08% hard suspension is 30 days. The stop challenges are the same either way. With a refusal implied consent can be challenged but the accused does not have standing to challenge the machine. If you blow then you would have standing to challenge the machine. The success rate is lower in the administrative review cases than in the criminal case. A new law that was passed last year basically allows the officer to skip the hearing. The accused license prior to the law would be restored if the officer did not show up. The new law states that A party may seek enforcement of a subpoena by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. This does not mean that the administrative review cannot be won it just shows that an attempt has been made to stack the odds in the states favor. Technical errors in the documents can be very successful grounds for overturning the administrative suspension. The hearing also allows the defense an opportunity to question the officer under oath prior to speaking with the state in most cases. If you are more worried about a DUI conviction than the license suspension the state will have less evidence if you refuse. Although if you are under the limit and refuse the state will have a case against you based on consciousness of guilt. This argument is not as strong as a high breath test result but does carry some weight.
4) Your prior history makes a big difference in your case. If you have a prior refusal the second refusal is a first degree misdemeanor punishable by up to 364 days in jail or 12 months of probation and a $1000 fine. The second refusal also carries an 18 month hard administrative suspension without the possibility of a hardship permit. A second DUI within 5 years has a minimum 10 day jail sentence. A third DUI with a prior in the last 10 years can be charged as a felony and results in a 10 year to lifetime license suspension. A fourth DUI carries an automatic lifetime license revocation. A new law makes it possible to get the license reinstated after 10 years with significant restrictions. On a second DUI outside of 5 years with a prior refusal it might be in your best interest to take a breath test because you would be exposed to a 30 day hard suspension compared to 18 months if you refused. The maximum suspension would be 1 year. If you are looking at a fourth DUI and feel that you will be over the limit the 18 month administrative suspension is the least of your worries because the criminal is required to give you a lifetime suspension if convicted. If the case is negotiated and the state stipulates that it is a first DUI you will still face a permanent revocation when The Department of Highway Safety and Motor Vehicles receives the conviction. The decision to blow or refuse can be complex and requires many factors to be considered. What is in your best interest depends on your individual circumstances. Daytona Beach DUI attorney. Offices at 209 West First Street, Sanford, FL 32771 and 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114. For free DUI information go to Free DUI information.

Central Florida DUI Attorney, Daytona Beach DUI Attorney, Criminal Defense Lawyer | Kevin J. Pitts

If you are arrested for a DUI in Volusia County go to Central Florida DUI Attorney, Daytona Beach DUI Attorney, Criminal Defense Lawyer | Kevin J. Pitts. Offices in Daytona Beach and Sanford.

Easy ways you can prevent a DUI stop

Easy ways you can prevent a DUI stop

How you can reduce your risk of being arrested for a DUI.

How You Can Prevent A DUI Arrest?

Not all DUI arrest can be prevented but a few simple steps can prevent many of the stops that end in a DUI arrest. Some of these areas are not only easy to prevent but also can be difficult to litigate. A tag light stop is an example of a preventable stop that is often upheld by courts. 

Always walk around your car to make sure it is in good working order if you have been drinking or are on prescription medication and decide to drive. One of the most common preventable reasons for a DUI stop is the tag light or license plate light. This is a favorite stop method in jurisdictions that aggressively enforce DUI laws. If both lights are out it is difficult to defend. That does not mean all hope is lost because a DUI has other areas to challenge. If you make the decision to drive after drinking do a simple walk around your car to make sure your lights are in working order. A $1 light could cost you thousands in fines, attorney fees and increased insurance cost. Generally speaking if both lights are out at night the stop is valid. If 1 light is out the stop can be challenged by your attorney. Different lights have different rules for example 2 of the 3 brake lights must be operable. White light coming from a brake light can also provide grounds for a valid stop. A simple walk around your car can almost eliminate equipment stops. If you are arrested for a Central Florida DUI equipment stop contact Central Florida DUI attorney. Visit my Seminole County office at 209 West First Street, Sanford, FL 32771.  

Be careful with altered equipment and loud music.

Excessive window tint, loud music and loud mufflers are all common issues that result in DUI stops. Loud music might be a form of expression but if it is “plainly audible at a distance of 100 feet or more from the motor vehicle" then it's a basis for a stop. An officer can also make a stop for an extremely loud or defective muffler. Excessive Window tint is another basis for a stop. Some case law indicates that the legality of the tint might not be the standard instead it is the officer's belief of the legality. In Wimberly the issue was whether the officers had probable cause to believe that the windows of the car in which Wimberly was riding were illegally tinted, not whether the windows were actually illegally tinted. State v. Wimberly, 988 So. 2d 116. So it is possible that a legal tint could result in a valid stop if the officer's mistake of fact is reasonable. The windows in Wimberly were 35% when the minimum transparency is 28%. If you are arrested for a window tint stop in the Daytona Beach area go Daytona Beach DUI attorney. Visit my new office at 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114. to 

Try not to make it easy for the police and State Attorney's office.

If you decide to drive under the influence try to avoid speeding and other distractions such as radios and phones. If the advice in this guide is followed many of the stops would be based on erratic driving, weaving, failure to maintain a single lane and other areas that are much easier for your attorney to work with. In aggressive DUI jurisdictions if you have any of these basic equipment violations in an enforcement area you can almost guarantee that the officers will stop to take a look. A tag light might not be a big deal but a DUI or drug seizure is. The inoperable tag lights is the officers admission ticket to take a look at you. If you have not been drinking the stop will likely be quick and painless but if you have had a few drinks you will likely find yourself on a one way track to jail. The optional field sobriety exercises are like running through a mine field hoping that you don’t step on anything. If you make it through then you get to run through it on the next exercise. If you are arrested for a DUI in Volusia County go to Daytona Beach DUI attorney. If you are arrested for a DUI in Seminole County go to Seminole County DUI attorney.

How to prevent being arrested for a DUI.

One of the most common preventable reasons for a DUI stop is the tag light or license plate light. This is a favorite stop method in jurisdictions that aggressively enforce DUI laws. The stop is very difficult for an attorney to defend against. The case law is very strong for the state. I have listed some summaries of tag light case law. If you make the decision to drive after drinking do a simple walk around your car to make sure your lights are in working order. A $1 light could cost you $5000-$10000 in fines, attorney fees and increased insurance cost. A deputy's observation from 40 to 50 feet away that tag light of defendant's vehicle was not working was sufficient to provide probable cause to believe that tag light was in fact inoperable and, thus, to justify a traffic stop, whether or not deputy inspected vehicle after stopping defendant. State v. Lee, 957 So. 2d 76 (Fla. Dist. Ct. App. 2007). In contrast Police officer's belief that defendant's vehicle had an equipment violation because only one tag light was working was a mistake of law that did not establish probable cause to stop the vehicle. The stop of defendant's vehicle was not authorized under statute allowing vehicle stops for a vehicle that is unsafe or not equipped as required by law, where the state did not show that the malfunctioning of one of the vehicle's two tag lights rendered the vehicle not equipped as required by law or unsafe. Langello v. State, 970 So. 2d 491 (Fla. Dist. Ct. App. 2007). Police had probable cause to stop vehicle where license tag illuminating light was not on when headlights were on, in violation of statute, even though stop took place before sunset and headlights were not required to be on. Andrews v. State, 540 So. 2d 210 (Fla. Dist. Ct. App. 1989). Generally speaking a Florida DUI tag light stop is difficult to suppress. On the other hand tag light stops do not carry a lot of weight with a jury unless the prosecutor has additional evidence of impairment. If you have been arrested for a DUI contact Daytona Beach DUI attorney Kevin J. Pitts. Kevin J. Pitts handles Central Florida DUI cases in Volusia, Seminole, Lake and Orange county. Mr. Pitts handles cases in other Central Florida counties on a case by case basis.

Central_Florida_DUI_Attorney: Unusual Driving and Failure to Maintain a Single Lane Florida DUI Stop.

Central_Florida_DUI_Attorney: Unusual Driving and Failure to Maintain a Single Lane Florida DUI Stop.

Unusual Driving and Failure to Maintain a Single Lane Florida DUI Stop.

Unusual driving and suspicion of impairment has been a heavily litigated area in Florida. In recent years the State's ability to use this standard for stops has been curtailed. An example of this is when a defendant was observed by an officer, around 3:00 a.m., weaving from one lane to another. The record does not show the crime with which the defendant was charged, but the officer stopped her because she was concerned that the driving pattern indicated the driver "could possibly be under the influence of—she could possibly be sick. You know, there were numerous other things that could be going on." The defendant moved to suppress the DUI stop on the ground that the officer had no reasonable suspicion to stop her, and the trial court granted the motion, stating that the officer did not specifically suspect DUI and noting that there was no one else on the road. Weaving, or failure to maintain a single lane, may or may not establish reasonable suspicion for a traffic stop. Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA 2007). See also Donaldson and Nicholas which stand for the proposition that for unusual driving or suspicion of impairment The State needs to show a driving pattern. Donaldson v. State, 803 So. 2d 856, 860 (Fla. 4th DCA 2002).Nicholas v. State, 857 So.2d 980 ( Fla. 4th DCA 2003). For a DUI case summary go to Daytona Beach Florida DUI Information.

For a Florida DUI stop for failure to maintain a single lane to be valid it must affect traffic. An officer observed a driver cross the right hand lane three times. No evidence was presented to show that he went far over the line or that any other driver was endangered. The court held that the stop for failure to maintain a single lane was illegal. The court stated that a violation of Florida Statute 316.089 does not occur in isolation but requires evidence that the driver created a reasonable safety concern. Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998). The 5th District Court of Appeals adopted the Crooks standard in Jordan. The Court stated that the statute recognizes that it is not practicable, perhaps not even possible for a motorist to maintain a single lane at all times.Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002). For more information go to Daytona Beach DUI attorney.