FDLE/ATP Form 38a: The Intoxilyzer 9000 Breath Alcohol Test Affidavit
When an individual is arrested for driving under the influence (DUI) in Florida and submits to an evidentiary breath test on the CMI Intoxilyzer 9000, the prosecution’s primary evidentiary weapon in court is “FDLE/ATP Form 38a (Breath Alcohol Test Affidavit).”
Promulgated by the Florida Department of Law Enforcement (FDLE) Alcohol Testing Program under Rule 11D-8.019 of the Florida Administrative Code (F.A.C.), Form 38a is the sworn certificate the State uses to introduce breath results without calling the technician in person.
Pursuant to Section 316.1934(5), Florida Statutes, a properly executed Form 38a is admissible in evidence without further authentication and serves as presumptive proof of the test results.
Form 38a is also the central document relied upon by hearing officers at Bureau of Administrative Reviews (BAR) formal review hearings to sustain driver license suspensions under Section 322.2615.
The admissibility of this document is at the formal review hearing or in court is conditional. If the affidavit reveals deviations from Chapter 11D-8 or lacks mandatory statutory elements, the statutory presumption collapses.
Anatomy of Form 38a: Required Predicate Disclosures
Form 38a replaces the legacy Form 38 used for the Intoxilyzer 8000. It requires the law enforcement agency and the breath test operator (BTO) to attest to several foundational facts under oath.
The Form 38a identifies the instrument type specifically as the Intoxilyzer 9000, along with the agency it is registered to, its unique serial number, and the active software version.
The Form 38a mndates reporting the date of the most recent monthly agency inspection conducted pursuant to Rule 11D-8.006 and Form 39a.
The Form 38a Records the exact time the observation began, accompanied by a sworn certification that the subject was observed for at least 20 continuous minutes prior to testing to ensure they took nothing orally and did not regurgitate.
The Form 38a records the subject’s legal name, date of birth, sex, test date, and numerical breath alcohol results (reported in grams of alcohol per 210 liters of breath).
The Form 38a is a a sworn statement executed under penalty of perjury certifying that the operator holds a valid FDLE Breath Test Operator permit, that the test was conducted in accordance with Chapter 11D-8, and that the affidavit is a true and accurate report.
The breath test affidavit must be sworn to before a notary or an officer authorized under Section 117.10, F.S.
Audit Checklist: How Defense Counsel Can Challenge Form 38a
We created this checklist used when we audit a breath test machine and its readings before a formal review hearing or when preparing the case for pretrial motions to suppress.
1. The 20-Minute Observation Rule Violation
Form 38a includes an explicit certification: “The subject was observed for at least twenty-minutes prior to the administration of the breath test to ensure that the subject did not take anything orally and did not regurgitate.”[cite: 20] Defense counsel must audit this timestamp against three external sources:
- When was the defendant transported, and when did they arrive at the breath testing facility?
- When did the operator begin typing the subject information into the touchscreen, and when was the first blow initiated?
- Video evidence frequently contradicts the affidavit.
- If the officer left the room, turned their back to complete paperwork, walked the defendant to a restroom, or left the defendant unattended during those 20 minutes, the observation requirement was not satisfied.
- A mere paperwork recitation of a 20-minute gap does not survive contrary video proof.
2. BTO Permitting & Instrument Qualification
Form 38a requires the operator to swear that they “hold a valid Breath Test Operator permit issued by the Florida Department of Law Enforcement.”
Under Rule 11D-8.008, holding an operator permit for the Intoxilyzer 8000 does not authorize an officer to operate an Intoxilyzer 9000. The operator must have completed the specialized Intoxilyzer 9000 course (FDLE Course 852) and had an active 9000 permit issued prior to administering the test.
If the officer operated the 9000 on an expired permit or solely on an 8000 credential, the affidavit is false on its face, and the results must be suppressed.
3. Mismatch on the “Date of Last Agency Inspection”
Form 38a requires the operator to record the “Date of Last Agency Inspection”. Defense counsel must verify whether an inspection actually occurred on that date and whether it was valid.
Cross-reference the listed inspection date against FDLE’s database to confirm an Agency Inspection Report (Form 40a) exists for that exact date.
Audit that underlying Form 40a against Form 39a requirements.
If that prior monthly inspection involved an unrecorded repeat test (omitting the mandatory corrective action in Remarks), used expired dry gas, or exceeded the calendar-month frequency rule, the machine lacked the required administrative predicate at the time the subject was tested.
4. Notarization and Officer Jurat Defects
While Section 117.10, F.S., grants law enforcement officers notary powers for official duties, they must still strictly comply with execution rules. Common fatal defects include:
- Failure of the notary officer to print their name, title, or agency badge number.
- Failure to check whether the operator was personally known or produced identification.
- Discrepancies where the operator signed after the date of notarization or where the affidavit was executed days later from memory rather than contemporaneously.
5. Software Version Mismatch
Under Rule 11D-8.003, only FDLE-approved software versions may be utilized for evidentiary testing. Form 38a reports the software version active on the machine during the test.
If the serial number was operating on outdated or uncertified firmware, the results lose their statutory presumption of reliability.
Litigation Strategy: Overcoming the § 316.1934(5) Presumption
BAR Formal Review Hearings: At the administrative hearing under F.S. § 322.2615, subpoena the breath test operator whenever video shows an incomplete observation period or the paperwork indicates a defect.
When the breath test operator admits on the record that their attention was diverted or that they failed to monitor the subject continuously, move to invalidate the license suspension for lack of substantial compliance.
Pre-Trial Motions to Suppress / In Limine: Carry the administrative hearing transcript and jail surveillance footage into County Court. Cite State v. Donaldson, 579 So. 2d 728 (Fla. 1991) and Robertson v. State, 604 So. 2d 783 (Fla. 1992). Show the judge that because the State violated Chapter 11D-8, the Form 38a affidavit loses its self-authenticating character and statutory presumption under § 316.1934(5).
Once the statutory presumption under § 316.1934 is stripped, the burden falls back on the State to establish the traditional three-prong common-law predicate. That predicate includes proving:
- the instrument was reliable;
- the operator was qualified; and
- the machine was operating properly on that date.
Without an expert toxicologist and a pristine maintenance trail, the prosecution often cannot admit the breath results.
Read more about problems with the Intoxilyzer 9000.
