FDLE/ATP Form 39a for Intoxilyzer 9000 Monthly Inspections

By Leslie Sammis | Sammis Law Firm | Tampa, Florida

As law enforcement agencies across Florida transition from the legacy Intoxilyzer 8000 to the CMI, Inc. Intoxilyzer 9000, prosecutors routinely present breath-test readings with an air of absolute scientific certainty.

Yet the foundational premise of any breath test prosecution in Florida remains unchanged because before the State can benefit from the statutory presumption of impairment under Florida Statutes § 316.1934, it must establish substantial compliance with the administrative testing rules set forth in Chapter 11D-8 of the Florida Administrative Code (F.A.C.).

Under Rule 11D-8.019, monthly agency inspections for the Intoxilyzer 9000 are governed exclusively by FDLE/ATP Form 39a (Agency Inspection Procedures – Intoxilyzer 9000).

An agency inspection that deviates from Form 39a is defective on its face.

When an inspector cuts corners, skips mandatory documentation, or runs undocumented repeat tests, an informed DUI defense attorney can expose those failures to exclude the breath reading or invalidate an administrative license suspension at a formal review hearing.

Core Structural Shifts Under Form 39a

Defense counsel familiar with Form 39 for the Intoxilyzer 8000 must understand that Form 39a is not a mere formatting refresh—it fundamentally alters the testing protocol, chemical tracking requirements, and documentation standards.

Unlike the Intoxilyzer 8000, which required warming multiple wet-bath simulators to test 0.05, 0.08, and 0.20 g/210L alcohol reference solutions, the Intoxilyzer 9000 relies exclusively on dry gas standard cylinders for all three concentration levels.

Form 39a requires only one wet simulator containing distilled or deionized water, used solely for the zero-alcohol blank and the acetone interferent check.

The inspector must now record lot numbers and expiration dates not only for standard gases, but also for the mouth alcohol solution and the acetone stock solution.

Form 39a tightens documentation rules when an analysis falls out of tolerance, replacing the old requirement to state a “reason” with a mandatory directive to record the specific corrective action taken.

Five Form 39a Violations Every Florida DUI Attorney Should Look For

1. The “Repeat Test” Trap: Omission of Mandatory Corrective Action

Under Section 5 of Form 39a, each inspection standard must fall strictly within acceptable tolerances (e.g., 0.075 to 0.085 g/210L for an 0.08 standard).

If a reading falls outside that range—such as an 0.074—the instrument prompts the inspector to repeat the test.

Form 39a dictates:

“Each test may only be repeated once. If a test must be repeated, the corrective action must be recorded in the Remarks section of FDLE/ATP Form 40a Agency Inspection Report – Intoxilyzer 9000.”

Agency inspectors frequently hit “Repeat,” obtain an in-tolerance number on the second cycle, and enter nothing in the Remarks section.

Under State v. Donaldson, 579 So. 2d 728 (Fla. 1991), failing to record the corrective action is not a technical clerical error; it leaves the record silent as to whether the machine was malfunctioning, leaking, or improperly calibrated, completely gutting substantial compliance.

2. Uncertified or Under-Qualified Agency Inspectors (Rule 11D-8.008)

An Agency Inspector certified only on the Intoxilyzer 8000 cannot inspect an Intoxilyzer 9000. Under Rule 11D-8.008, the inspector must:

• Complete the Breath Test Operator Course for the Intoxilyzer 9000 (FDLE Course 852);
• Complete the Agency Inspector Course for the Intoxilyzer 9000 (FDLE Course 853); and
• Hold a valid, active Intoxilyzer 9000 permit issued by FDLE prior to conducting the inspection.

In early agency rollout phases, inspectors often conduct inspections after completing coursework but before their formal permit is issued in FDLE’s Automated Training Management System (ATMS).

Cross-referencing the date and time on Form 40a against the inspector’s ATMS record can uncover an unauthorized inspection.

3. Expired or Untracked Mouth Alcohol and Acetone Stock Solutions

Under Section 5 of Form 39a, the inspector must explicitly enter the lot number and expiration date of the mouth alcohol solution and the acetone stock solution. On the Intoxilyzer 8000, mouth alcohol solutions were untracked, leading many inspectors to overlook this new mandate.

Check whether the lot numbers recorded on Form 40a match FDLE-approved lots and confirm that neither the mouth alcohol nor the acetone stock solution was expired at the time of the inspection.

4. Simulator Temperature and Warm-Up Deviations

While the Intoxilyzer 9000 uses dry gas for alcohol verification, it still requires at least one simulator for the water blank and interferent detection checks. Section 1 of Form 39a mandates:

• Warm-up for at least 30 minutes prior to the first analysis;
• Warm-up for at least 10 minutes when adding acetone stock solution; and
• Maintaining an air-leak resistant seal and an operating temperature of 34°C (± 0.2°C).

Compare the instrument’s power-on and login timestamp against the timestamp of the first analytical sample. If the inspector rushed the process and initiated the water blank in under 30 minutes, the thermal equilibrium required by rule was not met.

5. Missed Electronic Upload Deadlines (Rule 11D-8.006)

Pursuant to Section 6 of Form 39a and Rule 11D-8.006, the results of the monthly inspection must be made electronically available to FDLE within five (5) days of completion.

Defense counsel should always verify the completion timestamp on Form 40a against the public FDLE database upload timestamp. A late upload violates the administrative schedule governing evidentiary validity.

This article was last updated on Wednesday, October 14, 2026.