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Holding Law Enforcement to Their Own Standards
The most common question any criminal lawyer gets is “should I blow”. This is a reference to the almost universal usage by the police of “intoxylizer” or “breathalyzer” technology in the prosecution of DUI, one of the most widespread traffic crimes in Florida. Every criminal defense lawyer will give a different answer to that question. But what you need to know to even begin answering it is an understanding of Florida law, how the police use breathalyzer technology to get convictions, and what is wrong with breathalyzer or intoxylizer technology or the Florida law enforcement institutions that rely on it. A case recently came out that gives real insight to Florida’s use of the intoxylizer, because it explains how these machines are kept, repaired, maintained, and how the government pushes boundaries to get convictions.
In a significant decision for Florida citizens and criminal defense practitioners, a Florida appellate court recently denied the State’s petition for certiorari after a trial court ruled that breath test results from an Intoxilyzer 8000 were inadmissible. The court found that the instrument had undergone a repair — not mere maintenance — and that the repair was performed by an entity that was not an “authorized repair facility” under Florida law and administrative rules.
This decision reinforces the principle that law enforcement must follow its own rules to ensure reliability in evidence collection. When these standards are not followed, courts are empowered to exclude tainted evidence to protect the integrity of the justice system.
Florida Court Protects Citizens’ Rights in Intoxilyzer 8000 Challenge: State v. Kilburn, Marano, & Depauw
In a recent consolidated decision, State v Kilburn Marano Depauw, Florida’s Second District Court of Appeal upheld a trial court’s order precluding the State from introducing Intoxilyzer 8000 breath test results under § 316.1934(5), Fla. Stat. (2023), after finding that the machine used in three separate DUI prosecutions had undergone an unauthorized repair. This case is a major reminder of how critical it is that law enforcement follows established rules when maintaining and repairing breath-testing equipment — and why courts play a crucial role in protecting citizens’ rights.
Case Background
Robert Kilburn, Holly Marano, and Arthur Depauw were each charged with DUI under § 316.193, Fla. Stat. They filed motions to suppress breath test results, arguing that the Intoxilyzer 8000 used in their cases was not an “approved instrument” under Florida law because it had undergone a repair — the replacement of a broken breath tube — that was not performed by an authorized repair facility as required by rule 11D-8.002(13), Fla. Admin. Code.
Evidence at the suppression hearing included:
- An email from a sheriff’s deputy reporting that the breath tube was leaking and needed repair.
- Testimony that the machine was sent to the Florida Department of Law Enforcement (FDLE).
- Testimony that an FDLE inspector removed the top panel, disconnected wires, and replaced the tube.
The trial court ruled that this repair rendered the instrument out of “substantial compliance” with FDLE regulations, making the breath test results inadmissible under § 316.1932(1)(b)2 and § 316.1934(5), Fla. Stat.
State’s Petition for Certiorari
The State sought certiorari review, arguing that:
- Replacing the tube was merely maintenance, not repair, and FDLE inspectors are authorized to perform maintenance.
- The trial court applied an incorrect “strict compliance” standard rather than the proper “substantial compliance” standard.
- By excluding the results, the State was deprived of the statutory presumptions afforded by § 316.1934, substantially impairing its ability to prosecute the DUI cases.
The appellate court first confirmed that the State had shown irreparable harm, a jurisdictional prerequisite for certiorari, because the ruling forced the State to proceed without its primary evidence and no remedy would be available after an acquittal. See State v. Garcia, 350 So. 3d 322, 325 (Fla. 2022); State v. Milbry, 219 So. 3d 160, 161 (Fla. 5th DCA 2017).
Court’s Analysis and Ruling
The Second DCA held that the trial court did not depart from the essential requirements of law:
- The dictionary definitions of “repair” and “maintenance” supported the conclusion that replacing a broken breath tube was a repair, not maintenance.
- Rule 11D-8.002(13) requires that repairs be done by an “authorized repair facility,” which FDLE itself conceded it was not since 2015.
- The trial court correctly applied the “substantial compliance” standard and found the unauthorized repair a material violation, not a mere technical defect.
Accordingly, the petitions for writs of certiorari were denied, leaving the suppression orders in place.
Why This Case Matters
This case underscores the importance of strict adherence to statutory and administrative safeguards in DUI prosecutions. Breath test results carry enormous weight because § 316.1934 provides the State with presumptions that can shift the burden of proof to the defendant. When courts require compliance with FDLE’s own rules, they protect the integrity of the process and the public’s confidence that DUI convictions are based on reliable, lawfully obtained evidence.
Key Citations
- §§ 316.193, 316.1932(1)(a)-(b), 316.1934(5), Fla. Stat. (2023)
- Fla. Admin. Code R. 11D-8.002(13)
- State v. Garcia, 350 So. 3d 322 (Fla. 2022)
- State v. Milbry, 219 So. 3d 160 (Fla. 5th DCA 2017)
- State v. Donaldson, 579 So. 2d 728 (Fla. 1991)
- Bedell v. State, 250 So. 3d 146 (Fla. 1st DCA 2018)
Why Retaining an Attorney Matters
Criminal Defense Lawyer Matt Landsman at Landsman Law helps people accused of crimes in Gainesville, Alachua County, Bradford County, Levy County, Gilchrist County, and surrounding areas of north Florida. If you need help for yourself or a loved one, contact Criminal Defense Attorney Matt Landsman for a free consultation today. For help with any Criminal Matter from Board Certified Criminal Trial Lawyer Matt Landsman – CALL NOW
If you’re accused of any criminal matter, retaining an attorney is critical to protecting your rights. These cases will involve constitutional questions and concern allegations of misconduct or are sensitive in nature, requiring a skill, preparation and experience. For expert legal help, contact Gainesville Defense Lawyer Matt Landsman to protect your rights today.