Published on: 17215480. On February 12, 2016, pursuant to notice, at a meeting held in Tallahassee, Florida the Florida Department of Law Enforcement (Department) considered a petition for a permanent waiver of Rule 11D-8.010(1) and (2), F.A.C. by Lee Spector, Director, Criminal Justice Institute at Indian River State College (CJI/IRSC) and Robert E. Curry. After careful consideration of the facts in this matter, the Department found that Petitioners had demonstrated an economic, technological, legal, or other type of hardship resulting from a strict application of Rule 11D-8.010(1) and (2), F.A.C. that was particular to petitioners, significantly different from the way the rule affects other similarly situated persons and issued an order granting Petitioners’ petition for a permanent waiver of Rule 11D-8.010(1) and (2), F.A.C.
Published on: 17082687. Petition for waiver of Rule 11D-8.010(1), F.A.C.; February 12, 2016, 10:00 a.m.; Florida Department of Law Enforcement
2331 Phillips Road, Room B1055
Tallahassee, FL 32308
Published on: 17065906. a temporary waiver of Rule 11D-8.010(1) and (2), F.A.C. by Lee Spector, Director, Criminal Justice Institute at Indian River State College (CJI/IRSC) and Robert E. Curry. Petitioners wish to waive that portion of the rule that states: (1) Persons who conduct breath test training courses must have a valid Breath Test Instructor certification issued by the Criminal Justice Standards and Training Commission, and such persons shall be deemed permitted by the Department to conduct breath test training courses. (2) Unless exempted by the Commission, each breath test instructor must successfully complete the Commission-approved breath test instructor certification renewal course pursuant with Rule 11B-20.0017, F.A.C., to remain qualified for a breath test instructor certification. Successful completion of the Commission-approved breath test instructor certification course or breath test instructor certification renewal course satisfies that person’s agency inspector and breath test operator continuing education requirements. Each breath test instructor must also successfully complete all Department breath test instructor update courses.
Petitioners state that Mr. Curry is currently an adjunct instructor at CJI/IRSC. Petitioners state that Mr. Curry received his General Instructor Certificate in October 2001 and CMS General Instructor Transition certificate in April 2004. Petitioners state that Mr. Curry attended General Instructor Refresher course in 2006 making his General Instructor certificate valid until March 31, 2019. Petitioners state Mr. Curry was certified as a Breath Test Instructor on December 13, 2010 which expired on December 31, 2014. Petitioners state that the Florida Department of Law Enforcement’s Automated Training Management System indicated that Mr. Curry’s Breath Test Instructor certification was active until March 31, 2015. Petitioners state Mr. Curry has taught several breath test operator classes at CJI/IRSC between 2010 and 2014. Petitioners state that Mr. Curry taught a breath test operator class on February 18, 2015 relying upon the information in FDLE’s ATMS system not realizing his certification had expired on December 31, 2014. Petitioners state there was no willful intent to subvert the breath test certification process. Petitioners state that Mr. Curry has been diligent in maintaining his instructor certifications while employed with CJI/IRSC and will perform al requirements of 11B-20.0017, F.A.C. which now align with 11D-8.010, F.A.C. Petitioners state that a strict application of the rule would create a substantial hardship on CJI/IRSC and those students instructed by Mr. Curry in February 2015. Petitioners state the purpose of the underlying statute will be achieved if the waiver is granted.
Published on: 15902003. 11D-8.002(12): Adds the phrase “on a single Form 38 affidavit” to the definition of “Approved Breath Alcohol Test” to clarify and add specificity to the rule.
11D-8.002(13): Removes “the Department of Law Enforcement” from the definition of “Authorized Repair Facility” because the Department only performs maintenance on the breath test instruments and does not perform repairs.
11D-8.002(14): Add the word “human” to the definition of “Blood” to clarify that human blood is the type of blood to be analyzed for proficiency testing.
11D-8.002(20): Names the National Institute of Standards and Technology or international equivalent traceable standard as the “Dry Gas Standard” for compliance with the American Society of Crime Laboratory Directors/Laboratory Accreditation Board definition standards and to be consistent with Rule 11D-8.0036.
11D-8.002(22): Defines “Instrument Registration” to certify that the breath test instrument meets the requirements of Rules 11D-8.003 and 11D-8.004, F.A.C.
11D-8.002(23)-(25), (27)-(28): Renumbers these rule paragraphs due to additions in this rule section.
11D-8.002(26): Defines the “4-year Permit Cycle” for required continuing education requirements, and specifies the initial 4-year anniversary and continuing education dates to clarify and add specificity to the rule.
11D-8.003(1): Makes grammatical changes and updates the type of breath test method to reflect the scientific name “Infrared Spectroscopy”.
11D-8.003(2): Removes the Intoxilyzer 5000 instrument because Florida no longer uses this instrument; the Intoxilyzer 8000 instrument replaces this instrument. Reincorporates the Instrument Evaluation Procedures FDLE/ATP Form 34 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.003(3): Repeals this paragraph because Florida no longer uses the Intoxilyzer 5000 instrument, and renumbers the rule paragraph.
11D-8.003(4): Renumbers the rule paragraph due to a deletion in this rule section.
11D-8.003(5): Renumbers the rule paragraph due to a deletion in this rule section and clarifies that the Alcohol Testing Program is to evaluate software, and requires that an approved make and model of a breath test instrument remains approved until disapproved by the Department.
11D-8.0035(2)(b): Reincorporates the Certificate of Assurance FDLE/ATP Form 32 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.004(1): Requires the inspection of each breath test instrument to establish accuracy and reliability and ensure the registration of the instrument prior placing the instrument into evidentiary use by an agency.
11D-8.004(2): Defines the purpose of required Department Inspections of the breath test instruments and when these inspections must occur to ensure accuracy and reliability.
11D-8.004(3): Removes references to the Intoxilyzer 5000 instrument because Florida no longer uses this instrument. Reincorporates the Department Inspection – Intoxilyzer 8000 FDLE/ATP Form 36 and the Department Inspection Report – Intoxilyzer 8000 FDLE/ATP Form 41 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation. The paragraph also repeals the Department Inspection Report FDLE/ATP Form 26 because Florida no longer uses the Intoxilyzer 5000 instrument.
11D-8.006(1): Repeals the Agency Inspection Procedures FDLE/ATP Form 16 and the Agency Inspection Report FDLE/ATP Form 24 because Florida no longer uses the Intoxilyzer 5000 instrument. Reincorporates the Agency Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 39 and the Agency Inspection Report –Intoxilyzer 8000 FDLE/ATP Form 40 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.006(2): Removes references to the Intoxilyzer 5000 instrument because Florida no longer uses this instrument, and renumbers the rule paragraphs due to deletions within the rule section.
11D-8.007(1): Adds “Department” as an authorized entity to remove the cover of the Intoxilyzer 8000 evidentiary breath test instrument to perform maintenance and allow the instrument to be shipped for annual inspections because the Department was removed from the definition of an authorized repair facility in Rule 11D-8.002(13), F.A.C.
11D-8.007(4): Removes references to the Intoxilyzer 5000 instrument and repeals the Breath Test Results Affidavit FDLE/ATP Form 14 because Florida no longer uses the Intoxilyzer 5000 instrument. Reincorporates the Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37 and the Breath Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.007(5): Removes references to the Intoxilyzer 5000 instrument and repeals the Breath Test Log FDLE/ATP Form 13 because Florida no longer uses the Intoxilyzer 5000 instrument.
11D-8.075(1)-(2): Removes the agency inspection print cards and breath test log record requirements because they are associated with the Intoxilyzer 5000 instrument and Florida no longer uses this instrument. Restructures paragraphs to place the requirement that agency records are to be accessible to the Department in the paragraph defining those records because this is grammatically correct and in plain language.
11D-8.008(1)(e): Incorporates the Breath Test Permit Application FDLE/ATP Form 8 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.008(2)(c): Incorporates the Breath Test Permit Application FDLE/ATP Form 8 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.008(3): Defines the frequency of continuing education requirements to clarify and add specificity to the rule.
11D-8.008(5): Defines when a breath test operator or agency inspector permits expires for failing to complete the required mandatory continuing education to clarify and add specificity to the rule.
11D-8.008(7): Adds requirements to activate an expired permit created in Rule 11D-8.008(5), F.A.C., to obtain a valid breath test operator or agency inspector permit to clarify and add specificity to the rule.
11D-8.010(2): Adds the rule reference for the maintenance requirements of Breath Test Instructor certification to clarify and add specificity to the rule.
11D-8.011(1): Renumbers the rule paragraphs due to deletions with the rule section and removes Alcohol Dehydrogenase (Enzymatic) as an approved blood alcohol test method because gas chromatography is better forensically in determining blood alcohol levels, and no forensic laboratory uses this older technology.
11D-8.013(1): Incorporate the Application for Permit to Conduct Blood Alcohol Analyses FDLE/ATP Form 4 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation. Revises this form to remove Alcohol Dehydrogenase (Enzymatic) as a method used for blood alcohol analyses.
11D-8.0013(3): Removes approval of enzymatic analytical procedures based on alcohol dehydrogenase because alcohol dehydrogenase is not an approved blood alcohol test method pursuant to Rule 11D-8.011, F.A.C.
11D-8.013(3)(g): Removes the requirements for enzymatic analytical procedures based on alcohol dehydrogenase because alcohol dehydrogenase is not an approved blood alcohol test method pursuant to Rule 11D-8.011, F.A.C.
11D-8.013(4): Removes provision that ATP approve any substantial change to a laboratory facility. FDLE/ATP has never utilized the provision and the statute lacks the legislative authority to regulate laboratory facilities.
11D8.017: Repeals the various forms in this section. Repeals all forms associated with the Intoxilyzer 5000 because Florida no longer uses this instrument. Reincorporates forms associated with the Intoxilyzer 8000 instrument throughout Rule Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
Published on: 15306423. 11D-8.002(13): Removes “the Department of Law Enforcement” from the definition of “Authorized Repair Facility” because the Department only performs maintenance on the breath test instruments and does not perform repairs.
11D-8.002(14): Adds the word “human” to the definition of “Blood” to clarify that human blood is the type of blood to be analyzed for proficiency testing.
11D-8.002(20): Names the National Institute of Standards and Technology or international equivalent traceable standard as the “Dry Gas Standard” for compliance with the American Society of Crime Laboratory Directors/Laboratory Accreditation Board definition standards and to be consistent with Rule 11D-8.0036.
11D-8.002(22): Defines “Instrument Registration” to certify that the breath test instrument meets the requirements of Rules 11D-8.003 and 11D-8.004, F.A.C.
11D-8.002(23)-(25), (27)-(28): Renumbers these rule paragraphs due to additions in this rule section.
11D-8.002(26): Defines the “4-year Permit Cycle” for required continuing education requirements, and specifies the initial 4-year anniversary and continuing education dates to clarify and add specificity to the rule.
11D-8.003(1): Makes grammatical changes and updates the type of breath test method to reflect the scientific name “Infrared Spectroscopy”.
11D-8.003(2): Removes the Intoxilyzer 5000 instrument because Florida no longer uses this instrument; the Intoxilyzer 8000 instrument replaces this instrument. Reincorporates the Instrument Evaluation Procedures FDLE/ATP Form 34 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.003(3): Repeals this paragraph because Florida no longer uses the Intoxilyzer 5000 instrument, and renumbers the rule paragraph.
11D-8.003(4): Renumbers the rule paragraph due to a deletion in this rule section.
11D-8.003(5): Renumbers the rule paragraph due to a deletion in this rule section and clarifies that the Alcohol Testing Program is to evaluate software, and requires that an approved make and model of a breath test instrument remains approved until disapproved by the Department.
11D-8.0035(2)(b): Reincorporates the Certificate of Assurance FDLE/ATP Form 32 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.0036(2): Adds a uniform period of use for dry gas standards to establish consistency due to manufacturer differences with expiration dates.
11D-8.004(1): Requires the inspection of each breath test instrument to establish accuracy and reliability and ensure the registration of the instrument prior to placing the instrument into evidentiary use by an agency.
11D-8.004(2): Defines the purpose of required Department Inspections of the breath test instruments and when these inspections must occur to ensure accuracy and reliability.
11D-8.004(3): Removes references to the Intoxilyzer 5000 instrument because Florida no longer uses this instrument. Reincorporates the Department Inspection – Intoxilyzer 8000 FDLE/ATP Form 36 and the Department Inspection Report – Intoxilyzer 8000 FDLE/ATP Form 41 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation. The paragraph also repeals the Department Inspection Report FDLE/ATP Form 26 because Florida no longer uses the Intoxilyzer 5000 instrument.
11D-8.004(4): Removes “to register evidentiary breath test instruments” as a duty of a Department Inspector because only the Alcohol Testing Program Manager is authorized to register evidentiary breath test instruments.
11D-8.006(1): Repeals the Agency Inspection Procedures FDLE/ATP Form 16 and the Agency Inspection Report FDLE/ATP Form 24 because Florida no longer uses the Intoxilyzer 5000 instrument. Reincorporates the Agency Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 39 and the Agency Inspection Report –Intoxilyzer 8000 FDLE/ATP Form 40 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.006(2): Removes references to the Intoxilyzer 5000 instrument because Florida no longer uses this instrument, and renumbers the rule paragraphs due to deletions within the rule section.
11D-8.007(1): Adds “Department” as an entity authorized to remove the cover of the Intoxilyzer 8000 evidentiary breath test instrument to perform maintenance and allow the instrument to be shipped for annual inspections because the Department was removed from the definition of an authorized repair facility in Rule 11D-8.002(13), F.A.C.
11D-8.007(4): Removes references to the Intoxilyzer 5000 instrument and repeals the Breath Test Results Affidavit FDLE/ATP Form 14 because Florida no longer uses the Intoxilyzer5000 instrument. Reincorporates the Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37 and the Breath Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.007(5): Removes references to the Intoxilyzer 5000 instrument and repeals the Breath Test Log FDLE/ATP Form 13 because Florida no longer uses the Intoxilyzer 5000 instrument.
11D-8.075(1)-(2): Removes the agency inspection print cards and breath test log record requirements because they are associated with the Intoxilyzer 5000 instrument and Florida no longer uses this instrument. Restructures paragraphs to place the requirement that agency records are to be accessible to the Department in the paragraph defining those records because this is grammatically correct and in plain language.
11D-8.008(1)(e): Incorporates the Breath Test Permit Application FDLE/ATP Form 8 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.008(2)(c): Incorporates the Breath Test Permit Application FDLE/ATP Form 8 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.008(3): Defines the frequency of continuing education requirements to clarify and add specificity to the rule.
11D-8.008(5): Defines when breath test operator or agency inspector permits expire for failing to complete the required mandatory continuing education to clarify and add specificity to the rule.
11D-8.008(7): Adds requirements to activate an expired permit created in Rule 11D-8.008(5), F.A.C., to obtain a valid breath test operator or agency inspector to clarify and add specificity to the rule.
11D-8.010(2): Adds the rule reference for the maintenance requirements of Breath Test Instructor certification to clarify and add specificity to the rule.
11D-8.011(1): Renumbers the rule paragraphs due to deletions with the rule section and removes Alcohol Dehydrogenase (Enzymatic) as an approved blood alcohol test method because gas chromatography is better forensically in determining blood alcohol levels, and no forensic laboratory uses this older technology.
11D-8.013(1): Incorporates the Application for Permit to Conduct Blood Alcohol Analyses FDLE/ATP Form 4 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation. Revises this form to remove Alcohol Dehydrogenase (Enzymatic) as a method used for blood alcohol analyses.
11D-8.0013(3): Removes approval of enzymatic analytical procedures based on alcohol dehydrogenase because alcohol dehydrogenase is not an approved blood alcohol test method pursuant to Rule 11D-8.011, F.A.C.
11D-8.013(3)(g): Removes the requirements for enzymatic analytical procedures based on alcohol dehydrogenase because alcohol dehydrogenase is not an approved blood alcohol test method pursuant to Rule 11D-8.011, F.A.C.
11D-8.013(4): Removes provision that ATP approve any substantial change to a laboratory facility. FDLE/ATP has never utilized the provision and the statute lacks the legislative authority.to regulate laboratory facilities.
11D8.017: Repeals the various forms in this section. Repeals all forms associated with the Intoxilyzer 5000 because Florida no longer uses this instrument. Reincorporates forms associated with the Intoxilyzer 8000 instrument throughout Rule Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
Published on: 5792178. To conform and comply with new developments in the field of alcohol testing and with the needs of those affected by these rules.