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“Did the sample that was analyzed and reported meet the minimum breath volume criteria for a sample?”

Intoxilyzer 8000 Breath Test

Tampa, Florida DUI Attorney, Lawyer W.F.”Casey” Ebsary, Jr. ran into a potential witness in during our live coverage of the Intoxilyzer 8000 hearings in Tampa’s Circuit Courthouse. He has given us some interesting findings of breath test data that is not disclosed to Florida DUI Defense Attorneys that may be helpful to fighting DUI charges that use a breath result. DUI consultant Stephen Daniels with DUIUndo.com has given us some interesting information about the Intoxilyzer 8000, I-8000.

“The state cannot prove that any breath test result from Intoxilyzer 8000 is reliable without presenting the individual Cobra data for the specific test in question.”

We already knew, before Mr. Daniel’s report,  that the Intoxilyzer 8000 used in Florida DUI prosecutions will automatically log on to the Florida Department of Law Enforcement’s computer network and upload activities including calibration, testing, and individual DUI defendant’s tests. This auto-login will occur every 150 DUI subject tests. This data is commonly referred to as C.O.B.R.A. Data. C.O.B.R.A. stands for Computer Online Breath (BrAC) Archives. We routinely access these records in defending DUI charges in Tampa, Florida and elsewhere.

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Some people refer to COBRA as: In simple terms, C.O.B.R.A. is a cross-jurisdictional database search and analysis system. In Florida, COBRA Data is referred to as: “Computer On-line Breath Archives” We publish the story and a few notes by Florida DUI Attorney, Casey Ebsary,  below:

Stephen Daniels Writes on Intoxilyzer Software

I had my first out of state case and attached is the Cobra Data from an Oregon Intoxilyzer 8000. If all Intoxilyzer 8000’s are the same, and if all states design their own software, could the defense bar raise an argument as to whether FDLE/ATP ‘intentionally’ designed the Florida Cobra Software to ‘exclude’ extremely critical breath tests data from the defense? If they did, wouldn’t this be an ‘Intentional Tort’ or Official Negligence and wouldn’t that because for suit. If yes, then would this also not be a Brady Violation and a violation of the [Florida Rules of Criminal Procedure]:

Florida Criminal Procedure 3.220 (4) As soon as practicable after the filing of the charging document the prosecutor shall disclose to the defendant any material information within the state’s possession or control that tends to negate the guilt of the defendant as to any offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations.

Note From Florida DUI Attorney: The Intoxilyzer 8000 used in Florida DUI prosecutions will automatically log on to the Florida Department of Law Enforcement’s computer network and upload activities including calibration, testing, and individual DUI defendant’s tests. This auto-login will occur every 150 DUI subject tests. This data is commonly referred to as C.O.B.R.A. Data. C.O.B.R.A. stands for Computer Online Breath (BrAC) Archives. We routinely access these records in defending DUI charges in Tampa, Florida and elsewhere.

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If you notice pic 082 jpg of Oregon’s Cobra Data, that data includes two more lines of data than the Florida Cobra data. Those two additional lines of data; the sample duration and the ‘sample attempts raise serious doubts as to what is actually analyzed and reported. If you notice the 1st sample has

BrAC:                    0.184
Breath Volume:      2.355
Sample Duration:   8.28
Sample Attempts:   2

This breath test sample did not have a ‘VOLUME NOT MET’. It was the result of two (2) sample attempts each of ‘unknown’ sample duration. The print out from the Florida and Oregon Intoxilyzer 8000 printers only show the BrAC results and air blanks. Florida Cobra shows the additional Cobra data of the ‘Breath Volume”

However, the Oregon Intoxilyzer 8000 Cobra data shows ‘additional data’ not only of the breath volume, it also shows the following information that is vital to determining what actually happened during the individual breath test blows The Oregon Intoxilyzer printout that the state discovered only shows that my client provided two test results. But the Oregon Cobra Data (pic 82 jpg) from my PRR revealed data that shows that my client actually made to (2) sample attempts on the 1st test blow:

Sample Duration:  8.28
Sample Attempts: 2

Question From Tampa, Florida DUI Attorney: Why is each state making custom software modifications to these machines that have been approved by the United States Department of Transportation D.O.T.?

The questions become, ‘Does that void of vital test information in Florida’s Cobra go to the admissibility or the weight of the evidence? And then the questions for the evidence become: ‘What sample was analyzed the 1st or 2nd? And, ‘What was the time duration of the sample analyzed and reported? And, ‘Did the sample that was analyzed and reported meet the minimum breath volume criteria for a sample?’

We know from the online FDLE/ATP records that the Intoxilyzer 8000 does not need the 1.1 liter of breath volume to issue a BrAC result. There are 1000’s of breath test results that have a BrAC result with only a 0.015 breath volume. My point is, per Florida’s records, and applying the missing Oregon’s Cobra Data to any test result from a Florida Intoxilyzer 8000, could the defense not argue that ‘without’ full disclosure of the ‘individual Cobra Test data’ the state cannot proffer these results as ‘scientifically reliable or accurate’. Why? Because the state cannot show that the minimum criteria was in fact met when more than (1) sample was provided during the 1st or 2nd breath samples, and without this data the state cannot prove that any BrAC result from a Florida Intoxilyzer 8000 is in ‘Barfield’s terminology’…. wait for it….. Quantitative of the Subject’s Breath Alcohol Level.

What does Cobra stand for and how can it help us Beat a DUI Breath Test?

C.O.B.R.A. stands for Computer Online Breath (BrAC) Archives.

The state cannot prove that any breath test result from Intoxilyzer 8000 is reliable without presenting the individual Cobra data for the specific test in question. This data includes additional data surrounding test actual breath test sample and what was happening ‘exactly’ during each breath test sample. The COBRA data that is available on the Intoxilyzer 8000 is:

1. BrAC result
2. Breath Volume
3. Flow Rate (R Value)
4. Sample Duration (seconds)
5. Sample Attempts
6. Sample Chamber Temperature
7. Barometric Pressure
8. All Diagnostics During Sample Collection
9. Rounded Slope
10. Rounded Intercept
11. Stored Tests in Memory Mask

Tampa DUI Attorney Note: Florida only requires the report spit out of the machine at the time of testing and a few documents that establish monthly and annual testing / calibration to be put before a jury.

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Expert DUI Defense by W.F. Casey Ebsary, Jr.

Expert DUI Attorney W.F. Casey Ebsary, Jr You’re here because you’ve been arrested for a DUI in or near Tampa, Florida. Right now, that’s probably the scariest thing you can imagine. But take a breath. You’re not alone. Every single moment in the life of W.F. Casey Ebsary, Jr. has led him to this point … Continue reading Expert DUI Defense by W.F. Casey Ebsary, Jr.

DUI Lawyer in Tampa Bay Florida

If the State does not prove intoxication, there is no DUI conviction. Recently, we at DUI2Go encountered a tough case where the driver had blown into an Intoxilyzer 8000 breath machine and exceeded the legal limit in Florida of .08. Fortunately, our office has access to the logs of all breath test given by all machines in Florida and the maintenance records of these machines. As a result, we are sharing some of the Florida Department of Law Enforcement Intoxilyzer 8000 files. This is the Florida Department of Law Enforcement Alcohol Testing Program Intoxilyzer 8000 Operational Procedures also known as Form 37. In addition, the Florida Department of Law Enforcement also uses Form 38 Breath Alcohol Test Affidavit.  Finally, there is some great information in the Alcohol Testing Program Intoxilyzer® 8000 Reference Guide.

The Accuracy of Intoxilyzer 8000 in Court

Before 2014, often the state did not present scientific evidence of the machine’s accuracy. Recently, a Florida Driving Under the Influence court ruled in State v. Garcia, (20th Cir Aug 20, 2014) that the State Attorney must establish the admission of an Intoxilyzer Breath Test result. Prosecutors must use the traditional scientific predicate to introduce breath test results from Intoxilyzer 8000 in a trial. The court ruled that it could not determine whether the modified Intoxilyzer 8000 used in Florida was same machine/instrument approved by NHTSA ( National Highway Traffic Safety Administration ) for use in Florida.

Sometimes we uncover broken Intoxilyzer 8000 breath machines. We reviewed this official FDLE Form 41 Department Inspection Report records of this machine. The machine had not passed the post-inspection Diagnostic Check. The instrument does not comply with Florida Administrative Code Chapter 11D-8. In addition, after failing its monthly inspection there was no evidence of repairing the machine. Notably, the machine returned to service without any repair record.

No Proof, No DUI Conviction

When the Intoxilyzer 8000 has not been maintained, the results may be thrown out. Without that evidence, it is difficult for the state to prove your guilt. Sometimes the state will offer a reduced charge of reckless driving does not carry the risk associated with a DUI conviction. If you have another DUI conviction later, your prior convictions enhance your penalties. Your conviction penalties may include; fines, ignition interlock device, license suspension or revocation and jail or prison. Multiple DUIs can carry mandatory jail time. Once a driver has three or more DUI convictions, it becomes a felony.