How is a Florida breath test done, and what rules must police follow?

The breath test is often the center of a Florida DUI case, because a result of 0.08 or higher is itself a way to prove the charge. The law trusts that number only when the test follows rules that FDLE writes and enforces. Section 316.1934(3), Florida Statutes, says a breath test, to be considered valid, "must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose." This page sets out those methods from FDLE's rules in chapter 11D-8 of the Florida Administrative Code. For how Mr. Mead approaches the charge as a whole, see the main DUI defense page.

How does a breath test happen, step by step?

1. Arrest first. Under the implied consent law, the evidentiary breath test "must be incidental to a lawful arrest" and requested by an officer with reasonable cause to believe the person drove under the influence (s. 316.1932(1)(a)1.a.).
2. The warning. The person must be told that refusing means a license suspension of 1 year, or 18 months after a prior suspension, and a misdemeanor charge (s. 316.1932(1)(a)1.a.).
3. The observation period. For at least 20 minutes before the test, the operator, an inspector, the arresting officer or another designated person must "reasonably ensure" that the person "has not taken anything by mouth or has not regurgitated" (Rule 11D-8.007(3)).
4. The samples. The operator follows FDLE's operating procedures for the model and collects at least two breath samples within 15 minutes; if the first two results are more than 0.020 apart, a third is analyzed (Rules 11D-8.007(4), 11D-8.002(12)).
5. The affidavit. The results are recorded on FDLE's Breath Alcohol Test Affidavit, Form 38 for the Intoxilyzer 8000 or Form 38a for the 9000 (Rule 11D-8.007(4)).
6. The license suspension. At 0.08 or higher, the officer suspends the driving privilege on the spot, issues a 10-day temporary permit, and forwards the results to FLHSMV within 5 days (s. 322.2615(1)(a), (2)(a)). What happens next, in order, is set out in what happens after a DUI arrest in Florida.

Who regulates breath testing in Florida?

FDLE's Alcohol Testing Program. Under section 316.1932(1)(a)2., the program is responsible for regulating the operation, inspection and registration of breath test instruments, the people who operate and inspect them, and the analysts who test blood. FDLE describes that responsibility as exclusive, and says the program has been accredited as a forensic science calibration laboratory under the ISO/IEC 17025 standard since May 14, 2018. Rule 11D-8.003 approves one method, infrared spectroscopy, and one maker's instruments: "the CMI, Inc. Intoxilyzer 8000 and Intoxilyzer 9000." Breath results are reported in grams of alcohol per 210 liters of breath (s. 316.1932(1)(b)1.).

What makes a breath test valid under FDLE's rules?

Inspections check the instrument against alcohol reference solutions or dry gas standards of known strength, and the rules set an acceptable range for each; for a 0.08 standard, the result must fall between 0.075 and 0.085 (Rule 11D-8.002(1)). Operators must be at least 18, employed by an agency, and pass an approved course with at least 80 percent on the written exam, and they must complete renewal training in each 4-year cycle or stop testing (Rule 11D-8.008).

What changes the answer?

• How far the test strayed from the rules. The statute says "insubstantial differences between approved techniques and actual testing procedures or any insubstantial defects concerning the permit" do not make the result invalid (s. 316.1934(3)). FDLE's definition of an approved test adds that results not meeting every requirement may still be accepted "if proved to be reliable" (Rule 11D-8.002(12)). Whether a departure was substantial is for the court in each case.
• Not enough samples. Under the same rule, "Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test," with the consequences described in what happens if you refused the breath test in Florida.
• The number itself. At 0.05 or less, the person is presumed not impaired by alcohol; above 0.05 and below 0.08 there is no presumption; at 0.08 or more the result is prima facie evidence of impairment and an unlawful level (s. 316.1934(2)). At 0.15, penalties rise, as our Florida DUI penalties page shows.
• The driver's age. Drivers under 21 face a separate 0.02 limit for license purposes, and a portable device on the federal conforming-products list may be used for that administrative case (s. 322.2616(17)); see our page about a driver under 21 stopped after drinking.
• Drugs rather than alcohol. A breath test measures alcohol only. Suspected drug impairment leads to a urine or blood test, as explained in a DUI for marijuana or prescription drugs.

A worked example

For example, suppose a hypothetical driver's first breath sample reads 0.081 and the second, a few minutes later, reads 0.104. The two results are 0.023 apart, more than the 0.020 the rule allows, so FDLE's definition calls for a third sample. If the third reads 0.098, the second and third are within 0.020 of each other. Questions a defense lawyer would then ask include whether all three samples came within the time limits, whether the 20-minute observation started over after anything that happened in the room, whether the operator's permit and the monthly inspection were current, and how the State intends to treat the spread between the readings. The figures are invented to show how the rule works; they describe no real case.

What can I get about my own test?

On request, the person tested or the lawyer must receive "full information" about the test: the type of test and the procedures followed, the time the sample was collected, the numerical results, the type and status of the operator's FDLE permit, and, for a breath instrument, the date of its most recent required inspection (s. 316.1932(1)(f)4.). That right does not extend to manuals, schematics or software, or to material held by the manufacturer. The person may also arrange an independent test at his or her own expense, and the officer must not interfere and must give timely telephone access to set it up (s. 316.1932(1)(f)3.). If the officer never asks for a breath test, the arrested person can ask for one (s. 316.1932(1)(d)).

The breath affidavit can be admitted without the operator in court if it shows the test type and procedures, the time, the results, the operator's permit, and the instrument's most recent required maintenance, but the defense keeps the right to subpoena the person who gave the test (s. 316.1934(5)).

Common mistakes people make

• Assuming a result over 0.08 ends the case, when validity depends on the instrument, the operator and the procedure.
• Not writing down, right away, what happened in the room before the test: eating, drinking, burping, vomiting or using a phone.
• Giving weak or incomplete samples, which the rule can treat as a refusal.
• Missing the 10-day deadline to challenge the license suspension that the breath result triggered.
• Never asking for the "full information" about the test that the statute provides.

What to do this week

1. Keep the notice of suspension, the temporary permit and any breath result slip you were given.
2. Write a timeline of the stop, the arrest, the trip to the testing room and the test, while it is fresh.
3. Act on the license deadline; our first-week checklist after a DUI arrest walks through it day by day.
4. Ask your lawyer to request the full test information, the operator's permit and the instrument's inspection records.
5. If you plan to contest the suspension, read what the hearing officer can and cannot decide.

Frequently asked questions

Is the roadside breath device the same as the evidentiary test?

No. For the criminal case and the adult license suspension, FDLE's rules approve only the Intoxilyzer 8000 and 9000 as evidentiary breath instruments (Rule 11D-8.003). The statute separately allows a portable device on the federal conforming-products list in the administrative case of a driver under 21.

Can I ask for a blood test instead?

A breath test "does not preclude the administration of another type of test," and the person tested may arrange an independent test at his or her own expense (s. 316.1932(1)(a)1.a., (f)3.). The burden of arranging it is on the person.

How long does the observation period have to be?

At least 20 minutes before the test. The rule says this does not require a new 20-minute period before each later sample (Rule 11D-8.007(3)).

Is the breath result used at the license hearing?

Yes. The officer sends the results to FLHSMV, and at a formal or informal review the hearing officer decides whether the person had an unlawful breath-alcohol level of 0.08 or higher (s. 322.2615(7)(a)). The hearing is covered in what happens at a Florida DUI formal review hearing.

Is a 0.08 reading enough by itself for a DUI charge?

A breath-alcohol level of 0.08 or more is one of the ways the DUI statute itself defines the offense, separate from proof that normal faculties were impaired (s. 316.193(1)(c)). The State still has to show the test was valid under section 316.1934(3) and FDLE's rules.

Can the breath reading affect a Palm Beach program offer?

Yes. The State Attorney's first-time program sorts cases by reading, with one tier below 0.150, another from 0.150 to 0.200, and no cases over 0.200. Its terms are on our page about the Palm Beach County first-time DUI program.

How can Mr. Mead help?

A breath number is only as good as the instrument, the operator and the 20 minutes before the test. Mr. Mead reviews the affidavit, the operator's permit and the inspection history for the instrument used, and explains what they mean for your case. When the State relies on blood instead, the rules in can police take your blood after a DUI crash apply. Every case is different, and no outcome can be promised. For a confidential conversation, call (561) 362-6677, 24 hours a day.

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