After a DUI arrest in Hillsborough County, FL, you will be taken to a room at the Central Breath Testing (CBT) unit located within the Orient Road Jail in Tampa, FL, and asked to submit to a breath test on an Intoxilyzer 8000.
In order for the breath test result to be admissible at trial, certain rules must be complied with, including the rules found in Florida Administrative Code (FAC) 11D-8.007.
FAC 11D-8.007 provides in subsection one (1) that
“[e]videntiary breath test instruments shall only be accessible to a person issued a valid permit by the Department and to persons authorized by a permit holder….
Subsection 2 of FAC 11D-8.007 requires that
“[t]he instrument will be located in a secured environment which limits access to authorized persons described in subsection (1)….”
When there is a lack of compliance with the administrative rules, your DUI defense attorney can file and litigate a motion to suppress your breath test reading so that it cannot be used against you at trial.
If you are charged with a DUI in Tampa, FL, involving a breath test reading, then contact an experienced criminal defense attorney at Sammis Law Firm to discuss your case.
Our Tampa DUI Defense attorneys are experienced in filing and litigating motions to suppress breath test readings for a variety of reasons, including a lack of compliance with the administrative rules.
Call 813-250-0500 to discuss your case.
Violation of FAC 11D-8.007(1) and (2)
It appears that a serious violation of the Florida Administrative Code (FAC) 11D-8.007(1) and (2) occurred on January 23, 2018.
Supervisor Roger G. Skipper, Central Breath Testing Unit Supervisor sent a memorandum to Master Sergeant Timothy R. Bell, explaining how an “unescorted instrument access” occurred on January 23, 2018. The unescorted instrument access compromised the breath test room and instruments being stored in that room.
The incident occurred at the Central Breath Testing location at the Orient Road Jail in Tampa, FL (often identified as ORJ – Building 10 – CBT).
According to Supervisor Roger Skipper, at 10:51 hours on January 23, 2018, Alcohol Breath Analysis Technician Melanie Snyder #4113 told Mr. Skipper that a locksmith had accessed Room SI-01 (breath test room) as a pass-through to Room FR-01 (CBTU File Room) to finish a lock repair.
The locksmith, identified as Samuel Ramirez, Jr. #242169, had been previously escorted into the breath test room at the Orient Road Jail by Technician Melanie Snyder.
Upon returning from court, Mr. Skipper told Master Sergeant Bell #4152 about the intrusion into the breath test room by an unauthorized person. Mr. Skipper also reported the access violation to the State Inspector Danielle Bell of the Florida Department of Law Enforcement’s Alcohol Testing Program (FDLE/ATP).
Mr. Skipper reportedly conducted a System Check breath test on the four instruments located in the testing room with no issues noted. He also conducted a dry gas standard stability check (10 repetitions each) on all four instruments involved with no issues noted.
The four instruments were removed from service and were reportedly shipped to FDLE/ATP after an agency inspection. Those four instruments were identified as 80—000833, 80-003387, 80-003388 and 80-006567.
Along with this disclosure, FDLE was notified that on January 22, 2018, it was determined that keys to some of the staff lockers at CBT were not working. For some reason, the staff lockers in CBT are located in the restricted access area. In response to this problem with the keys, Master Sergeant Timothy R. Bell created a ticket number 026263 that was printed on 1/22/18 at 20:04:18.
Inspection of the Hillsborough County Central Breath Testing Unit
The Department Inspector Field Notes indicate that on February 13, 2018, Danielle Miller Bell arrived to inspect and audit the Hillsborough County Central Breath Testing Unit.
According to the field notes entered on the FDLE/ATP Form 44, there are several rooms separated by keys (with differing locks to facilitate different access levels).
Access levels were reportedly well defined. New signs on the entrance clearly define authorized personnel allowed to enter rooms containing Intozilyzers.
The department inspector reportedly observed a total of eight evidential instruments present. (Four in service and four separated ready for inspection later that evening). The report indicated that the equipment is kept clean and dry.
The solutions in use are in date and well labeled. The department inspector did not observe an agency inspection, although she did audit several files. All filed are well kept and in order. The department inspector reported that all files were present and keep for the required time frame at a minimum.
The department inspector did not check any of the comprised instruments for compliance with Rule 11D-8.
Electronic COBRA Data for the Breath Test Machines
We looked at the COBRA Data and found that all of these machines, 80-000833, 80—3387, 80-003388 and 80-006567 were pulled from service on 1/23/2018.
No subject tests were done on these machines in January after 1/23/18 or at any time in February of 2018. The electronic data for March has not been uploaded to FDLE as of yet.
80-000833
“Test” completed on 1/23/2018 by Roger Skipper
Agency Inspection (AI) completed on 2/3/2018
Department Inspection (DI) completed on 3/5/2018
80-003387
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018
80-003388
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018
80-006567
“Test” completed on 1/23/2018 by Roger Skipper
AI completed on 2/13/2018
DI completed on 3/5/2018
For instance, 80-003387, arrived at FDLE on 2/16/2018 and a department inspection was conducted on 3/5/18. The R-Value was found to be 101. The notes on the FDLE/ATP Form 48 show that Danielle Miller Bell, a Department Inspector with FDLE, recommended sending the machine to Enforcement Electronics for Flow Sensor replacement due to the R-value reading low.
Motions to Suppress Breath Test Readings for a Lack of Compliance
When our DUI defense attorneys represent a client in a DUI case involving a breath test reading over .08, we conduct an audit on the breath test machine.
During the audit, we search all of the records to find whether the breath test machine was properly registered, whether it passed all of the required department and agency inspections, and whether there are any usual subject tests. We look for error or exception messages on any of the subject test during the relevant time period.
In some cases, we find problems with your breath test or the way your breath test machine was maintained. These problems might lead to the filing of a viable motion to suppress the breath test reading because of a lack of compliance with the administrative rules.
If you were arrested for a DUI in Tampa, FL, involving a breath test reading over the legal limit of .08, then contact us to discuss the case. Call us at 813-250-0500.
Picture from the former Central Breath Testing (CBT) Unit at the Orient Road Jail, Hillsborough County Sheriff’s Office, in Tampa.
Tampa DUI Attorney Blog 