The Affidavit Showed One Breath Test. The Machine’s Own Records Showed Three.

A high breath number is supposed to end the conversation. In a recent Manatee County case it read over 0.17, more than twice the legal limit, and by the time the file reached me the case had already been through three court dates with another lawyer. The State’s offer, for a first-time offender, carried adjudication on both DUI counts, probation on each served back to back, a restitution figure north of $9,000, and 60 days in the county jail. The judge had said the case would either plead or be set for trial at the next hearing.

The way to take a case like that apart is to stop reading the number and start reading the machine.

Two Counts From One Crash

My client had rear-ended stopped traffic on an interstate exit ramp at night in the rain, and her car struck two vehicles in one motion. Nobody was transported from the scene. She stayed, cooperated, did the field exercises, and gave breath samples. The State charged two counts of DUI with property damage or personal injury under section 316.193(3)(c)1, one count for each vehicle, along with a careless driving citation.

Two counts from one act of driving is the first thing worth noticing, because it doubles the record consequence without adding a single fact. A DUI conviction in Florida is not a one-time penalty. It is a count. A second conviction carries a higher fine, up to nine months, and a mandatory year of ignition interlock. A third conviction within ten years of a prior is a third-degree felony. The Department of Highway Safety and Motor Vehicles keeps its own tally, and three DUI convictions within five years arising out of separate acts make a habitual traffic offender with a five-year revocation. Two convictions from one night would have left my client, at twenty-five, one conviction away from a felony, and would have sat on her driving record as two entries for the Department to count. Whether two counts from a single crash would count separately toward habitual offender status is its own fight, and nobody should have to have it. Whether Florida law permits a separate DUI count for each person or vehicle damaged in one crash is a question the appellate courts have not settled, and it became one of the four asks in the counteroffer later. But what actually moved the State was the breath test, and that came from records nobody in the case had looked at.

The Affidavit Said One Test. The Machine Said Three.

The State’s breath evidence in a Florida DUI arrives as a one-page affidavit. It shows the two samples, the times, the operator, and the result. In this case it showed a test sequence beginning a little after four in the morning, two samples about five minutes apart, and the numbers above.

The Florida Department of Law Enforcement publishes the electronic data from every Intoxilyzer 8000 in the state, by month and by instrument, and anyone can download it. I pulled the month for this machine. The instrument had run three separate sequences on my client that night, and the affidavit disclosed only the last one.

The first sequence began about twenty minutes before the one on the affidavit. It ran its diagnostics, its air blank, and its control test, all fine, and then aborted on the subject sample with the exception message RFI Detect and a recorded breath volume of zero. RFI is radio frequency interference. The Intoxilyzer has a detector for it because a transmitting radio close to the instrument can distort the reading, and the room where these tests happen is full of radios. The second sequence, four minutes later, aborted the same way. That sequence also logged an RFI detection during an air blank, which is the step where the instrument samples room air with nobody blowing into it. Whatever was interfering was interfering with the machine, not with my client.

The third sequence is the one the State relied on, and even that one had a problem the affidavit did not show. Its first subject sample read a little higher still and was rejected by the instrument for insufficient volume, at less than a quarter of a liter against a minimum of 1.1. The two samples that followed came in at 1.156 and 1.203 liters, just over the floor. Those are the two numbers on the affidavit.

So five things happened at that instrument before the two numbers on the affidavit were produced. Two aborted tests, three interference detections, and a rejected sample. None of it was in the discovery. All of it was in a public record that took an afternoon to pull. Anyone with the serial number off the affidavit could have done it. Through three court dates, nobody had, and that afternoon is the difference between the file I inherited and the file I sent back.

What the Instrument Did Afterward

The same download carries the instrument’s inspection history, and that is worth reading even in a case where the test night looks clean. The monthly agency inspection after my client’s test carried a remark that the instrument had registered an alcohol reading on a check that is supposed to read zero, and that the inspector had re-run it until it passed. The inspection after that was aborted partway through and restarted. The instrument then went back to the manufacturer, and the department inspection when it returned records that external seals were replaced. It ran no subject tests at all for a period after that.

Reading an instrument’s inspection and repair history is not something law school teaches. It is something I picked up at the national DUI defense seminars I spend a good part of every year in, and it is why this file looked different to me than it did to the lawyer who had it first. None of that proves my client’s number was wrong. What it does is put the State in the position of proving the number was right, on a machine whose own records show it flagging interference three times in the minutes before her test and then being taken out of service and repaired. Under Florida law, once the defense makes a showing that the approved method was not followed, the burden is on the State to prove the test was administered in substantial compliance with the rules. That is a hearing the State has to win with witnesses, and it has to bring the operator and the inspector to do it.

The Motion, and What It Changed

I filed a motion to suppress or exclude the breath results built on those records, with the electronic data attached as exhibits, and a supplemental demand for the paper the State had not produced: the printed tickets from the two aborted sequences, the inspection reports, the operator’s permit, and any record of what was transmitting in that room. I sent the prosecutor a courtesy copy the same day with a note that the current offer left nothing to do but litigate, and that I would rather find a landing spot than spend a month in an evidentiary hearing.

Within two weeks the jail was off the table if the motion was withdrawn. That is the honest shape of most DUI negotiation. A motion rarely wins by being granted. It wins by changing what the State thinks the case is worth before anyone stands up to argue it.

The Mitigation Packet Did the Rest

With the jail gone, the remaining terms were still heavier than the case called for, and the way to move them was a written mitigation packet with a term-by-term counteroffer. It asked for four things.

First, that the second DUI count be dropped, or amended to reckless driving, because one night of driving should not produce two permanent DUI convictions. Second, that the 100 AA meetings be replaced with community service. My client had finished the twelve-hour DUI course and her substance abuse evaluation on her own, roughly eight weeks after the arrest and before anyone ordered her to, and the evaluator had referred her to counseling that she was already attending. A hundred lay meetings from a program the evaluator did not choose would sit on top of a clinical plan that already existed. Third, that the restitution not be ordered. The figure, about $9,500, was the balance left on the other driver’s car loan after her insurer paid out, which is a financing number and not the fair market value the restitution statute asks for, and my client’s own insurer had already paid a settlement on that claim with most of it going straight to the lender. Every person who made a claim from the crash had been paid and had signed a release. Fourth, that everything else in the offer stay exactly as the State wrote it.

The packet also told the prosecutor who my client was. A first offender in her mid-twenties with no arrests, no citations, and a decade of continuous work, who had carried more than her share as a kid and had never had a day of treatment before this case. I kept it short and I kept it honest, including the parts that did not help, because a prosecutor can tell the difference and the credibility is what makes the rest of the letter work.

How It Ended

The State came back with an amended offer three weeks later. The second DUI count was dropped. Probation went from two years to twelve months, and the prosecutor agreed to automatic early termination once the conditions are done. The AA condition went from 100 meetings to 10, and that cut came from the packet: a prosecutor who had read, in detail, who my client was, a first offender with no history with alcohol before this arrest and a clinical plan already in place, did not need a hundred meetings to answer a problem the record did not show. Community service went from 75 hours to 50. The restitution on the property claim came down to about $2,000, with the remaining claim reserved. At the plea, the careless driving citation was dismissed, and the judge waived the vehicle impound unless my client obtains a car during probation, because she does not have one.

One DUI plea with adjudication, twelve months of probation that can end early, and no jail. The motion was never argued. My client walked out with one count instead of two, no time in a cell, probation that ends when she finishes her conditions, and a driving record that carries one DUI rather than a second one waiting to make the next mistake a felony.

What This Means If Your Breath Number Is High

A number over 0.15 changes the sentencing exposure and it changes how a prosecutor values the case, but it does not change what the number is: the output of an instrument that keeps its own records, in a room that keeps none. The affidavit is the State’s summary of the test. The electronic data is the test. Every Intoxilyzer 8000 in Florida reports its subject tests, its inspections, and its exception messages to the state, and those records are public. In this case they showed two aborted sequences and three interference flags that the affidavit left out, on a machine that was repaired the following month. A high number on a clean affidavit and a high number on that record are two different cases, and only one of them supports 60 days in jail for a first-time offender.

If you have a high number and a lawyer already on the case, ask one question this week: have the instrument’s electronic records been pulled? A blank look is an answer. The rest of the questions I would ask are in The Test I Want You to Give Every DUI Lawyer, Including Me. I handle DUI cases in Manatee County and across the Tampa Bay area, how the breath evidence comes apart is on my breath test defense pages, the radio interference and inspection records pages in particular, and the full list of outcomes lives on the case results page.

Common Questions

Can I get the breath machine’s records in my Florida DUI case?

Yes, and you do not need a subpoena for most of them. The Florida Department of Law Enforcement publishes the Intoxilyzer 8000 subject test data, agency inspection data, and department inspection data for every instrument in the state, organized by month. The instrument serial number is on the breath test affidavit in your discovery. The printed tickets from the test itself, the operator’s permit, and the paper inspection forms come from the State through a demand for discovery.

What does RFI Detect mean on a breath test?

It means the instrument’s radio frequency interference detector fired during that step of the sequence and the sample was not accepted. The Intoxilyzer 8000 has the detector because a transmitting radio near the instrument can affect the reading. When it fires, the sequence aborts and has to be started over. The exception message appears in the electronic record and on the instrument’s printed ticket, but it does not appear on the affidavit unless the operator writes it there.

If a breath test was run more than once, does that help my case?

It depends on why. Under the Florida rule, an aborted sequence does not by itself require a fresh twenty-minute observation period before the next one. What matters is what caused the abort, whether the operator documented and resolved it, and whether the reported samples were produced under the conditions the approved method requires. Two aborts on interference in the minutes before the reported test is a fact the State has to explain at a hearing, and it is a fact the State cannot explain without the operator.

Can the State charge two DUIs for one crash?

Florida’s DUI statute makes it a separate first-degree misdemeanor to cause damage to the property or person of another while driving under the influence, and prosecutors sometimes file one count for each vehicle or person involved. Whether the statute permits a separate count per victim from a single act of driving is not a settled question in Florida. In practice, it is a charging decision, and a prosecutor can drop a duplicate count without a court ever ruling on it. It matters because each conviction counts toward the enhanced penalties for a second and third DUI, and a third within ten years is a felony.

Further Reading

1. Intoxilyzer 8000 Records, Florida Department of Law Enforcement Alcohol Testing Program, the public subject test, agency inspection, and department inspection data by month and instrument
2. Fla. Stat. 316.193, driving under the influence, Online Sunshine, with the property damage and personal injury offense at subsection (3)(c)1 and the enhanced penalties at subsection (4)
3. Fla. Stat. 775.089, restitution, Online Sunshine, with the fair market value basis at subsection (7)(b) and the State’s burden at subsection (7)(c)
4. Fla. Stat. 316.1925, careless driving, Online Sunshine

This is one case with its own facts, and it resolved by negotiated plea rather than by a ruling on the motion. Past results do not guarantee or predict the outcome of any other case, and nothing here is legal advice. The offense is section 316.193(3)(c)1, Florida Statutes; the restitution provisions are section 775.089(6) and (7); careless driving is section 316.1925; the habitual traffic offender definition is section 322.264. The breath testing rules are chapter 11D-8, Florida Administrative Code.