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Two Florida attorneys are challenging their state's use of the Intoxilyzer 8000 breath testing device that is being brought into Virginia to replace the oft-criticized Intoxilyzer 5000 that has been in use for several years to prove a suspect's Blood Alcohol Concentration (BAC). They claim that the machine is inherently inaccurate, produces false readings, and that it should not be the basis for DUI convictions.

Because blood tests to determine a suspected impaired driver's BAC is no longer optional in Virginia, the Intoxilyzer 5000 test result has been the key piece of evidence used to convict in Virginia when the reading is 0.08 or higher. The margin of error for the Intoxilyzer 5000 is alleged to be "only" +/- 0.02, but the tests results have been acceptable in the courts. As a result of this inaccuracy, people whose BACs are 0.08 or 0.09 are being convicted of DUI even though their actual BAC may be lower than 0.08, such as 0.07 or 0.06.