Flaws in the machine

Katz explained why the breath test using the Intoxilyzer 8000 may be flawed:

The first evidentiary machine in Florida used software version 8100.26. That's when I was with the State Attorney's Office. While we were fighting the battle to keep evidence admissible, we received a letter from the head of the FDLE (Florida Department of Law Enforcement) saying that there was a problem with the software such as giving inaccurate results and missing instructions. Attached to the letter was a list of some three or four hundred cases where the head of the alcohol testing program had gone through all the test results and found ones that were reported as scientifically valid, even though there wasn't enough volume in the instrument for it to make a proper reading.

Come to find out, the instrument wasn't flagging those. They changed the software version to 8100.27 and said the problems were solved. However, since the new software has come into use, there are now some anomalies the instrument. We've found hundreds, possibly thousands, of cases where a person's breath volume was over the minimum mandatory amount which were flagged as 'volume not met.'

Unfortunately, the breath test operator does not see the volume. That is only reported to a centralized computer system in Tallahassee and we can only get it later. So, the breath test operator is seeing "volume not met," and they're claiming that the person refused to take the test because they didn't blow hard enough.

Drivers unfairly losing licenses

Katz says that the state is calling it a refusal and people are losing their driver's licenses for refusing to take the test even though they tried to take it - and he says it isn't fair. "They did everything they were supposed to do right and the instrument said that their volume wasn't enough even though it was."

He provided another example, "There are breath test results where the instrument shows a breath/alcohol content with a volume of .000, which means it's showing alcohol in the machine even though nobody blew into it. However, volume isn't on the breath test affidavit, but those breath test results are appearing on people's result readings, even though there's no breath in the instrument."

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