In August 2025 a Florida appeals court kept breath test results out of three DUI cases because of how the machine was fixed. Not because the number was wrong, and not because the operator made a mistake, but because the wrong hands replaced a part.
That decision is State v. Kilburn, Nos. 2D2024-0649, 2D2024-0652, and 2D2024-0722 (Fla. 2d DCA Aug. 15, 2025) (consolidated), it comes from the appellate district that covers this firm’s home counties, and it turned on a single word: whether swapping a part is maintenance or a repair. This page explains the ruling, the rule change that followed it, and the part of the argument that survives no matter what the rule says today.
Repair or Maintenance: Why One Word Decides It
Florida law lets the State prove a DUI with a breath number on favorable terms only when the testing program substantially complied with the administrative rules that govern it. Those rules allow the routine upkeep of an instrument, and they restrict who may repair one.
Neither the DUI statutes nor the breath rules define repair or maintenance, so the court in Kilburn reached for the ordinary meanings. To repair is to restore by replacing a part or putting together what is torn or broken. To maintain is to keep something in its existing state and preserve it from failure or decline. Replacing a broken breath tube restores by replacement. That made it a repair.
The same logic reaches the O-rings, the small rubber seals that keep an instrument airtight. Replacing one is replacing a part. The seals themselves already appear throughout the State’s own paperwork, which is covered below.
What Kilburn Held, and Where It Binds
The facts were plain. A deputy reported that the breath tube on an Intoxilyzer 8000 was leaking, broken, and in need of repair. An inspector from the state program opened the instrument’s top panel, disconnected an O-ring and wiring, and replaced the tube. The instrument went back into service, and three people were later tested on it.
The Second District Court of Appeal agreed with the trial judge that this was a repair, and that under the rule as it then read, the state program was not an authorized repair facility. An unauthorized repair meant the program had not substantially complied with its own rules, and the breath results were suppressed. The State asked the appellate court to undo that ruling, and the court declined.
Two things about the decision matter more than its headline. First, the court that issued it is the Second District, whose decisions bind the trial courts of Pinellas, Hillsborough, Manatee, Sarasota, DeSoto, and Polk counties. This is home law, not a distant curiosity, and courts elsewhere in Florida have since applied it. Second, the remedy is specific, and it is covered below, because it is narrower than the news coverage suggested.
The Rule Changed on July 1, 2026. Check the Date First.
Here is the part most write-ups of Kilburn omit, and it decides whether the argument exists at all.
The engine of the decision was the definition of an authorized repair facility in the Florida Administrative Code. The version in force when those instruments were repaired named the manufacturer and entities authorized by the manufacturer, and did not name the state program. Effective July 1, 2026, the definition was amended, and it now expressly includes the Florida Department of Law Enforcement.
So the question in any case is not whether Kilburn is good law. It is when the repair happened.
- Repair before July 1, 2026: the rule the Kilburn court applied governs, and a repair by the state program was not a repair by an authorized facility.
- Repair on or after July 1, 2026: the amended definition governs, and the who-repaired-it argument is gone. The inspection arguments below remain.
A defense that does not check this date is running on a rule that no longer exists, and a prosecutor who has read the amendment will say so. The full scheme, including the 2025 and 2026 amendments, is mapped on the alcohol testing program rules page.
The Inspections That Must Happen No Matter Who Repairs
The durable half of this subject does not depend on who opened the machine. It depends on what the rules require afterward, and those requirements survived the amendment.
A department inspection after every repair. The current rule states that a department inspection must be conducted subsequent to repair and prior to the instrument being placed in evidentiary use. That inspection is what validates the instrument’s approval for evidentiary use.
An agency inspection on the way out and on the way back. Whenever an instrument is taken out of evidentiary use, the agency must conduct an agency inspection, and it must conduct another one before the instrument returns to evidentiary use.
A department inspection at least once every twelve months, and an agency inspection every calendar month, repair or no repair.
Every one of those events generates a record, and every gap in the sequence is a fact. An instrument that came back from a repair and started testing people before its inspections were done is out of compliance under the current rules, whoever did the repairing. What those records look like and how to get them is covered on breathalyzer calibration and inspection records.
What the State’s Own Paperwork Shows About O-Rings
None of this is hypothetical, and the proof is in the program’s own files. Florida’s breath instrument records are public, and the inspector remark fields in the statewide Intoxilyzer 8000 data include entries, in the inspectors’ own words, like these:
- O-RING NOT SEATED
- POOR O-RING SEAL
- BAD O RING
- RESEAT BOTTOM. O-RING REPLACED
- LOOSE HOSE AND O RING
The seals fail, the inspectors write it down, and the parts get swapped. In the litigation that followed Kilburn, sworn testimony in a Duval County hearing described O-ring replacement happening routinely across the hundreds of evidentiary instruments in the state, with no witness able to say how many of the replaced seals were actually defective, because no one kept a record of that.
The remark fields matter for a second reason. The inspector’s handwritten comments routinely say more than the pass and fail boxes on the form, which is why the full inspection history, and not just the certificates, is worth demanding. The instrument’s own stored data completes the picture, and reading it is covered on how to read breathalyzer results.
What Suppression Actually Wins, Stated Honestly
The remedy in Kilburn is narrower than the headlines made it sound, and overstating it helps no one.
This is not a constitutional ruling. It is an implied consent ruling, which means the State loses the statutory presumptions that normally let a breath number walk into evidence on favorable terms. The State may still attempt to introduce the result the harder way, through a traditional scientific predicate, and it may still prosecute the DUI on the officer’s observations, the driving, and the video.
What the argument really does is convert an easy case into a contested one, and it puts the instrument’s history at the center of the fight, which is exactly where a well-documented compliance failure does its work. How that fight is actually run is on how we challenge a breathalyzer result.
What to Ask For in a Repair Case
- The instrument’s complete maintenance and repair history, not just its inspection certificates.
- Every agency inspection report with the inspector’s remarks, and the department inspection reports, for the instrument that tested you.
- The dates the instrument left and returned to evidentiary use, matched against the dates of the required inspections.
- Any correspondence reporting the instrument broken, and any record of parts replaced, including seals.
- The instrument’s stored electronic data for the period around the repair.
The sequence is the case: broken, repaired, inspected, returned. When the records show a different order, that is not a technicality. It is the program failing the rules that make its numbers admissible.
Questions About Breathalyzer Repairs
Can a breath test be thrown out because the machine was repaired?
It can be, when the repair or what followed it broke the rules the test depends on. In State v. Kilburn, decided by Florida’s Second District Court of Appeal in August 2025, breath results were suppressed after a state inspector replaced a part on an Intoxilyzer 8000, because under the rule text then in force the repairer was not an authorized repair facility. Whether that reasoning fits a particular case now depends heavily on when the repair happened, because Florida amended the rule in 2026.
What is the Kilburn decision?
State v. Kilburn is a Second District Court of Appeal decision from August 15, 2025, arising out of Sarasota County, covering three DUI cases tested on one Intoxilyzer 8000. A deputy reported the breath tube leaking and broken, a state inspector opened the instrument and replaced the tube, and the court held that replacing a part is a repair rather than maintenance. Because the repairer was not an authorized repair facility under the rule as it then read, the State lost substantial compliance and the breath results were kept out. The Second District’s decisions bind the trial courts of Pinellas, Hillsborough, Manatee, Sarasota, DeSoto, and Polk counties.
What is the difference between repairing and maintaining a breath test machine?
The court in Kilburn used the ordinary meanings, because Florida’s statutes and breath rules define neither word. To repair is to restore something by replacing a part or putting together what is torn or broken. To maintain is to keep something in its existing state and preserve it from failure or decline. Replacing a breath tube, or an O-ring, restores by replacement, which is why the label matters so much.
Did Florida change its breathalyzer repair rule?
Yes, and anyone relying on Kilburn needs to know it. Effective July 1, 2026, the definition of an authorized repair facility in the Florida Administrative Code was amended to expressly include the Florida Department of Law Enforcement, alongside the manufacturer and entities the manufacturer authorizes. The version of the rule the Kilburn court quoted did not include the Department. So the argument that an FDLE repair was unauthorized turns on the date of the repair, and for repairs on or after July 1, 2026 it is no longer available.
What has to happen after a breathalyzer is repaired?
Under the current rules, a department inspection must be conducted after a repair and before the instrument goes back into evidentiary use. Separately, whenever an instrument is taken out of evidentiary use the agency must conduct an agency inspection, and it must conduct another one before the instrument returns. Those duties survived the 2026 amendment, and whether each inspection actually happened, in the right order and on the right dates, is a question the records will answer.
Does a suppressed breath test end a DUI case?
No. Suppression of this kind rests on the implied consent rules rather than the Constitution, so the State loses the statutory presumptions that make a breath number easy to use, and it can still try to bring the result in the harder way, through a traditional scientific predicate, and it can still prosecute the DUI on the officer’s observations and the video. A suppressed test changes the case. It does not erase it.
Related: the main breathalyzer and breath test defense page, calibration and inspection records, the 11D-8 rules reference, and the instruments themselves, the Intoxilyzer 8000 and the Intoxilyzer 9000.
The date decides the argument. Kilburn turned on a rule definition that Florida amended effective July 1, 2026. A repair before that date and a repair after it live under different rules, and the inspection requirements apply to both. The records will say which case yours is.
This page is general information, not legal advice, and it does not create an attorney-client relationship. Breath testing in Florida is governed by Fla. Stat. 316.1932 and 316.1934 and the Florida Administrative Code chapter 11D-8, which was amended effective July 17, 2025 and July 1, 2026. Case law and rules change, and every case turns on its own facts. Past results do not guarantee a similar outcome.
