Department of Highway Safety and Motor Vehicles v. Berne(5th District Court of Appeals, October 8th, 2010

Whether or not the Petitioner's breath was tested on an approved device is at the heart of the instant case. Despite the Petitioner's best efforts, the hearing officer failed to consider the discrepancies and problems presented in the Intoxilyzer approval studies performed in April and May of 2002. Competent substantial evidence existed to demonstrate that these approval studies did not comply with the requirements of FDLE Rule 11D-8.003 and FDLE Form 34, as argued by the Petitioner and noted by the en banc panel in the Atkins [ State v. Atkins, 16 Fla. L. Weekly Supp. 251a (Fla. Orange Cty. Ct. June 20, 2008) ] case. Without independent scientific evidence demonstrating the reliability of the Intoxilyzer 8000 with software version 8100.26, the hearing officer should have excluded the Petitioner's breath test results.