The $1 O-Ring That Could Unravel Florida's Breath Test Program

What the Duval County suppression order in State v. Cruz Lopez actually held, and why every Intoxilyzer 8000 case in Florida is now in play

By Alan S. Bernstein, Esq.

DUIFloridaPro.com

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On August 12, 2026, three Duval County judges sitting jointly signed an order that should be required reading for every DUI practitioner in this state. In State v. Sergio Rosario Cruz Lopez, Case No. 2025-CT-004249, Judges Scott Mitchell, Eleni Elia Derke, and Mose Floyd granted a motion to suppress breath test results, finding that the Florida Department of Law Enforcement's Alcohol Testing Program and the Jacksonville Sheriff's Office had been performing repairs on Intoxilyzer 8000 instruments while neither was a designated authorized repair facility.

The component at the center of the case costs about a dollar. It is a rubber O-ring.

The national press has covered this as a novelty story. It is not a novelty story. It is a foundational attack on the statutory admissibility mechanism that Florida prosecutors rely on in tens of thousands of cases per year, and it rests on an appellate decision, a rulemaking record, and an FDLE form that the State itself created.

Part One: The Procedural Posture Matters

Before reaching the merits, the panel resolved a burden-allocation fight that defense counsel should expect to see again in every division where this motion is filed.

Cruz Lopez filed his Motion to Suppress on December 31, 2025, and an Amendment to Motion to Suppress Breath Test on March 2, 2026. A hearing was set for May 11, 2026. Four days before the hearing, the State filed a Memorandum of Law arguing that the pleading should be treated as a motion in limine rather than a motion to suppress, which would have shifted the burden onto the defendant.

That distinction is not academic. Under a suppression framework, the State bears the burden of proving substantial compliance with the approved methods. Under a motion in limine framework, the defendant carries the load. The State ultimately conceded the point and proceeded on a suppression theory, acknowledging that it bore the burden.

The panel then did something tactically significant: it held that even if the burden had been shifted to the defendant, the evidence developed on cross-examination of the State’s own witnesses would have been sufficient to carry it. That belt-and-suspenders finding insulates the order from the most obvious appellate attack. Counsel replicating this motion should build the record the same way, through cross of the FDLE Department Inspectors and the agency inspector, so that the ruling does not depend on who bore the burden.

By agreement of the parties, the motion was heard by a three-judge panel of county court judges sitting jointly to resolve common facts and legal issues. The order expressly states it is intended to aid the remaining Duval County judges ruling on identical motions in their own divisions, while acknowledging it is not binding on them. That posture tells you how many of these motions are pending.

Part Two: The Regulatory Architecture

Florida's breath testing program is a creature of statute and rule, and its admissibility shortcut is entirely conditional.

Section 316.1932, Florida Statutes, sets out the Implied Consent Law and directs the Alcohol Testing Program within FDLE to promulgate rules for breath and blood testing. FDLE responded by promulgating Chapter 11D-8, Florida Administrative Code.

Three provisions do the work here:

• § 316.1932(1)(a)2.p. grants FDLE ATP authority "to approve repair facilities for the approved breath test instruments, including the authority to set criteria for approval."

• § 316.1932(1)(b)2. provides that a breath analysis, to be valid, must have been performed substantially according to methods approved by the Department of Law Enforcement.

• § 316.1934(3) supplies the statutory presumptions of impairment, and § 316.1934(5) supplies the streamlined admissibility mechanism.

At the time of the Cruz Lopez hearings, Rule 11D-8.002(13) defined "Authorized Repair Facility" as "the breath test instrument manufacturer or an entity authorized by the breath test instrument manufacturer to service and repair such breath test instrument."

Read that definition carefully. FDLE is not the manufacturer of the Intoxilyzer 8000. Neither is the Jacksonville Sheriff’s Office. The State stipulated that neither entity was designated as an authorized repair facility during the relevant period.

So the entire case reduces to a single definitional question: was the work being performed on these machines maintenance, which inspectors may lawfully do, or repair, which only an authorized repair facility may do?

Part Three: The Evidence

The testimony established a routine practice, not an isolated lapse.

At FDLE ATP. Every evidentiary breath test instrument must undergo a Department Inspection at FDLE ATP at least once per calendar year, and any time the machine is returned from an authorized repair facility. FDLE ATP’s standard operating procedure required four external O-rings to be replaced every time an Intoxilyzer was sent in, with a fifth internal O-ring replaced at the Department Inspector’s discretion. The State’s FDLE witnesses had no records identifying which replaced O-rings were damaged or in disrepair, and could not testify as to how often they replaced O-rings that were broken.

Beyond O-rings, testimony revealed that during Department Inspections FDLE ATP also replaced broken batteries, breath tubes, and dry gas regulators.

At the agency level. Every instrument must also undergo an Agency Inspection at the respective law enforcement agency at least once per month. The JSO Agency Inspector testified that he replaced O-rings at the sheriff’s office, that on numerous occasions those replacements occurred after the O-rings were observed to be broken, damaged, and in need of repair, and that he kept no record of when this occurred and no record of which machines he worked on.

The consequence. Testimony established that a damaged, broken, or improperly replaced O-ring could affect the instrument’s control test, which in turn could affect the accuracy of the breath test results. That is the reliability nexus, and it is what separates this argument from a paperwork technicality.

The recalibrations. FDLE ATP witnesses also testified that some instruments sent in for annual Department Inspection produced out of tolerance results, requiring either recalibration by a Department Inspector or removal of the machine from service.

There was no meaningful factual dispute. The State’s position was purely characterization: all of this, it argued, was maintenance.

Part Four: The State’s Own Form Refuted the State

The panel found the State’s maintenance theory contradicted by FDLE ATP’s own Instrument Processing Sheet, Form 48, admitted as Exhibit A and used as part of the annual Department Inspection.

Form 48 contains a section labeled "Maintenance." That section lists battery replacement, dry gas regulator replacement, and breath tube replacement.

"Replace External O-rings" does not appear under Maintenance. It appears under a separate heading titled "Quality Checks."

FDLE drafted that form. FDLE chose where to place each task. Having categorized O-ring replacement as something other than maintenance on its own document, the agency was poorly positioned to argue in court that it was maintenance all along. This is the kind of exhibit that wins hearings, and it should be at the top of every public records request going out in the wake of this order.

Part Five: Kilburn, and the Precedential Value Fight

The panel’s analysis was driven by State v. Kilburn, 418 So. 3d 275 (Fla. 2d DCA 2025), decided August 15, 2025, in consolidated Case Nos. 2D2024-0649, 2D2024-0652, and 2D2024-0722.

Kilburn arose from three DUI prosecutions using the same Intoxilyzer 8000. A sheriff’s deputy emailed FDLE reporting that the instrument’s breath tube was leaking, broken, and in need of repair. A Department Inspector then removed the top panel of the instrument, disconnected an O-ring and wires attached to an electronic chip, and replaced the tube. The trial court excluded the results. The State sought certiorari. The Second District denied relief in a written opinion.

Because Kilburn came to the district court as a denial of certiorari, the State in Cruz Lopez argued it carried no precedential weight, citing Shaps v. Provident Life & Accident Insurance Co., 826 So. 2d 250 (Fla. 2002), among other authorities.

The panel rejected that argument, and correctly so. The line of cases the State relied on concerns denials without written opinion. See Gould v. State, 974 So. 2d 441, 445 (Fla. 2d DCA 2007) (per curiam appellate decisions without a written opinion have no precedential value); Bevan v. Wanicka, 505 So. 2d 1116, 1117 (Fla. 2d DCA 1987); Florida Insurance Guaranty Association, Inc. v. Celotex Corp., 547 So. 2d 696, 697 (Fla. 4th DCA 1989); Don Mott Agency, Inc. v. Harrison, 362 So. 2d 56 (Fla. 2d DCA 1978). Kilburn was a reasoned merits opinion addressing the statutory and rule question directly. The panel found it binding, and held in the alternative that it was more than persuasive even if not binding, relying additionally on Department of Highway Safety and Motor Vehicles v. Bennett, 125 So. 3d 367 (Fla. 3d DCA 2013).

Practitioners outside the Second District should expect the State to press the non-binding argument hard. Prepare for it in your written motion, not at the podium.

Part Six: The Definitional Holding, and How Cruz Lopez Extends It

Neither "maintenance" nor "repair" is defined in Chapter 316 or in Chapter 11D-8. The Second District therefore went to the dictionary, as Florida courts do when the legislature leaves a term undefined. See Alvarez-Sowles v. Pasco County, 386 So. 3d 224, 230 (Fla. 2d DCA 2024).

Kilburn adopted these definitions:

The word repair is generally understood to mean to fix something that is broken, and the dictionary defines repair as "to restore by replacing a part or putting together what is torn or broken." ... Maintain, the verb form of maintenance, is defined as "to keep in an existing state (as of repair, efficiency, or validity): preserve from failure or decline."

Id. at 279 to 280.

Applying those definitions, the Duval panel found the actions of the Agency Inspector and FDLE ATP were repairs, and that permitting repairs at an unauthorized facility is not substantial compliance with the law or the administrative rules.

Then the panel went a step further than Kilburn, and this is the part with the longest reach.

Taking the Kilburn definition of repair as restoration, the panel consulted the dictionary definition of restore: to bring back to or put back into a former or original state. It followed that recalibrating an out-of-tolerance instrument to return it to its proper settings is itself a repair.

Consider the scope of that holding. The O-ring argument is bounded by whether a particular instrument had rings replaced. The recalibration holding potentially reaches every instrument that ever produced an out-of-tolerance result at a Department Inspection and was adjusted rather than removed from service. That is a category defined by FDLE’s own inspection records, and those records are discoverable.

Part Seven: The 2015 Rulemaking Record

The most damaging material in this line of cases is not in the Duval order at all. It is in footnote 2 of Kilburn.

Before July 29, 2015, the definition of "Authorized Repair Facility" in Rule 11D-8.002(13) included the Department. FDLE removed itself from that definition through rulemaking. The stated reason, published in the Florida Administrative Register, was that the Department only performs maintenance on breath test instruments and does not perform repairs. See 41 Fla. Admin. Reg. 1842 (Apr. 16, 2015).

FDLE told the public, in an official rulemaking notice, that it does not repair these machines. That is why it took itself out of the definition.

The Second District then noted the tension: Rule 11D-8.007(1) continues to provide that only authorized repair facilities or the Department may remove the top cover of an Intoxilyzer 8000. The rule structure simultaneously contemplates the Department opening up the instrument and disclaims that the Department repairs anything.

Meanwhile, the Duval panel found that FDLE ATP was designated an authorized repair facility by the manufacturer approximately one month after Kilburn was decided, and expressly noted its concern that FDLE ATP attempted to circumvent Kilburn by back-dating that authorization to cover repairs performed before the decision.

A judicial finding that a state agency back-dated a compliance document is not a small thing. It is a credibility finding, and it is available to any defense lawyer who wants to use it.

Part Eight: What Suppression Actually Means Here

The order is careful, and defense counsel should be equally careful in how they describe it to clients.

The panel expressly stated that the conduct at issue did not violate the Fourth or Fourteenth Amendments. This is a violation of the Implied Consent Law, and the remedy flows from the exclusionary provisions of that statutory scheme as recognized in Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992).

What that means in practice:

1. The streamlined statutory route is closed. The results are inadmissible under the simplified admissibility provisions of the Implied Consent Law.

2. The statutory presumptions are gone. The State is not entitled to the presumptions of impairment. See State v. Miles, 775 So. 2d 950, 955 (Fla. 2000) (presumptions of impairment are specifically contingent upon compliance with the implied consent law).

3. The traditional scientific predicate survives. The State may still attempt to introduce the results under State v. Bender, 382 So. 2d 697 (Fla. 1980), by laying a full traditional predicate on reliability, operator qualification, and testing methodology.

That third point is where the real fight moves. A Bender predicate is expensive, expert-dependent, and exposes the instrument’s entire service history to cross-examination. Many prosecutors will not attempt it in a first-offense misdemeanor. Some will attempt it and fail. The practical effect in most cases is that the number disappears.

A DUI case does not disappear with it. The State can still proceed on impairment evidence: driving pattern, officer observations, field sobriety exercises, body camera and dash camera video, admissions, and physical evidence. Anyone reading press coverage suggesting that thousands of cases are automatically dismissed is reading it wrong.

Part Nine: The Statewide Picture

Why this reaches beyond Duval County. The Intoxilyzer 8000 is the evidentiary breath test instrument in use throughout Florida, including in Palm Beach and Broward Counties. FDLE ATP is a single statewide program running a single set of standard operating procedures. The Cruz Lopez order did not find that one machine in Jacksonville was mishandled. It found that a statewide processing protocol, memorialized on a statewide form, produced unauthorized repairs. Every instrument that passed through FDLE ATP during the relevant period was processed under the same protocol.

The limits. A county court order binds no one but the parties. The Duval panel said so itself. In circuits outside the Second District, the State will argue Kilburn is not controlling. Individual judges will reach different conclusions, and appellate resolution through circuit court appellate divisions and the district courts is likely to take years and to produce conflict.

The critical temporal line. This is the point most of the coverage has missed. FDLE has already amended the rule. Following a rule development notice published October 31, 2025, and a proposed rule published April 2, 2026, Rule 11D-8.002 was amended effective July 1, 2026. The published purpose of that amendment was, in FDLE’s own words, to update definitions and amend the definition of Authorized Repair Facility for repairs of authorized instruments. The same rulemaking amended 11D-8.004 to change breath test inspection timeframes from a calendar year to twelve months, and amended 11D-8.007 regarding instrument references.

The practical consequence is a before-and-after divide. Whether the O-ring and recalibration arguments reach a given case depends on which version of Chapter 11D-8 governed the instrument work at issue, not on the arrest date alone. For instrument servicing performed before July 1, 2026, the pre-amendment definition applies and the argument is live. For servicing after that date, the analysis changes and must be evaluated against the amended text.

Note also the sequence: FDLE lost Kilburn in August 2025, opened rule development on the repair facility definition roughly ten weeks later, and had the amended rule effective by July 1, 2026. That timeline is itself an argument.

Part Ten: A Practical Checklist

If you are handling a Florida DUI with an Intoxilyzer 8000 breath result, the following should be underway:

4. Identify the instrument serial number from the Breath Alcohol Test Affidavit (FDLE/ATP Form 38).

5. Request the complete Department Inspection history, including Form 41 Department Inspection Reports and, critically, the Form 48 Instrument Processing Sheets for every year the instrument was in service.

6. Request Agency Inspection Reports (Form 40) and all agency-level maintenance and repair documentation, including any absence-of-records certification. The lack of records is itself the point.

7. Request the shipping and chain of custody records showing when the instrument went to FDLE ATP and when it came back.

8. Request all correspondence between the agency and FDLE ATP concerning the instrument, particularly anything describing a component as broken, leaking, damaged, or in need of repair. That was the smoking gun in Kilburn.

9. Request recalibration and out-of-tolerance documentation for the instrument. This is where the Cruz Lopez extension does its work.

10. Request the manufacturer authorization documentation for FDLE ATP, including its effective date and the date of issuance. The Duval panel’s back-dating concern makes this a live issue.

11. Determine which version of Chapter 11D-8 governed each servicing event.

12. Plead it as a motion to suppress, anticipate the motion in limine reframing, and build the record through cross-examination so the ruling does not turn on burden allocation.

13. Preserve the Bender fight. Assume the State will attempt a traditional predicate and prepare the reliability cross accordingly.

    
    

A Closing Observation

There is a temptation to treat this as a gotcha, and the press framing around a one dollar part invites it. That framing sells the story short.

The Legislature conditioned an extraordinary evidentiary shortcut, a machine-generated number that carries a statutory presumption of guilt, on the agency’s compliance with its own rules. FDLE wrote those rules. FDLE removed itself from the repair facility definition on the express representation that it does not perform repairs. FDLE designed the form that classifies O-ring replacement as something other than maintenance.

When an agency asks the courts to enforce a presumption built on compliance, it does not get to redefine compliance after the fact. That is the actual holding, and it is a good deal more durable than a rubber ring.

Alan S. Bernstein is a Florida criminal defense attorney with more than three decades of trial experience, practicing primarily in Palm Beach and Broward Counties with an emphasis on DUI defense and constitutional criminal litigation.

This article is provided for general informational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship. Every case turns on its own facts, its own instrument records, and the version of the administrative rules in effect at the relevant time. If you are facing a DUI charge involving a breath test result, consult a qualified Florida DUI defense attorney about your specific circumstances.