13-001037RU Robert R. Berry And Jill Humphrey vs. Department Of Law Enforcement Status: Closed DOAH Final Order on Tuesday, June 25, 2013.

Summary: The form created to track the processing of breath alcohol test instruments is not a "rule."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT R. BERRY AND JILL

HUMPHREY ,

Petitioners ,

vs. Case No. 13 - 1037RU

DEPARTMENT OF LAW ENFORCEMENT ,

Respondent .

/

FINAL ORDER

An administrative hearing in this case was held on May 2,

2013, in Tallahassee, Florida, before Administrative Law Judge

William F. Quattlebaum, Division of Administrative Hearings.

APPEARANCES

For Petitioner s : Robert Ralph Berry, Esquire

Eisenmenger, Berry and Peters, P.A .

5450 Village Drive

Rockledge, Florida 32955

For Respondent: Ann Marie Johnson, Esquire

Department of Law Enforcement

2331 Phillips Road

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is w hether a form created by the

Florida Department of Law Enforcement's Alcohol Testing Program

constitutes a "rule" as defined at se ction 120.52(16), Florida

Statutes (2012). 1/

PRELIMINARY STATEMENT

On March 19, 2013 , Robert R. Berry and Jill Humphrey

(Petit ioners) filed a Petition Challenging Agency Statement

Defined as Rule. The Petitioners allege that a form used by the

Florida Department of Law Enforcement (Respondent) meets the

statutory definition of a "rule" and that the form should be

subjected to th e rulemaking process set forth at section 120.54 .

On March 21, 2013, a Notice of Hearing was issued scheduling

the administrative hearing for April 18, 2013. Based upon an

Agreed Motion for Continuance filed on April 1, 2013, the hearing

was rescheduled for May 2 , 2013.

On April 29, 2013, the parties filed a Pre - Hearing

Stipulation containing a Statement of Admitted Facts. The

stipulated facts have been adopted and are incorporated herein,

including the serial numbers of the breath test instruments

cu rrently registered for use in the State of Florida.

At the hearing, the Petitioners presented the testimony of

one witness and had Exhibits numbered 1 through 10 admitted into

evidence. The Respondent presented no testimony or exhibits.

The T ranscript of the hearing was filed on May 20, 2013.

Both parties filed proposed final orders that have been

considered in the preparation of this Final O rder.

FINDING S OF FACT

1. Petitioner Robert Berry is a licensed and active driver

in the State of Florida who is subject to the "implied consent"

provisions of section 316.1932, Florida Statutes.

2. Petitioner Jill Humphrey is a defendant in a criminal

prosecution pending in Brevard County, Florida. Ms. Humphrey was

arrested and charged by the State of Florida w ith driving with an

unlawful breath alcohol level, after having submitted to an

alcohol breath test pursuant to s ection 316.1932.

3. In addition to the charge of driving with an unlawful

blood alcohol level, Ms. Humphrey is also being prosecuted under

t he theory that her breath alcohol test results were sufficient

to create a presumption under section 316.1934 that she was

driving under the influence of alcohol to the extent that her

normal faculties were impaired.

4. The State of Florida has asserted that all applicable

statutes and administrative rules were met related to the breath

alcohol test administered to Ms. Humphrey and that the results of

the test are admissible at trial.

5. Pursuant to s ection 316.1932(1)(a)2. and Florida

Administrative C ode Chapter 11D - 8, the Alcohol Testing Program

(ATP), a unit within the Respondent, is responsible for the

operation, inspection and registration of the "Intoxilyzer 8000"

breath testing instruments used for conducting breath alcohol

tests on drivers suspe cted of "driving under the influence" (DUI)

in Florida .

6. Each instrument is subjected to an annual inspection

performed by the ATP at its laboratory in Tallahassee, Florida.

Local law enforcement agencies ship the instruments to

Tallahassee for the ann ual inspection. R ule 11D - 8.004 provides

as follows:

Department Inspection and Registration of

Breath Test Instruments.

(1) The Department shall register and

inspect a breath test instrument prior to

such instrument being initially placed into

evidenti ary use by an agency. The inspection

validates the instrument's approval for

evidentiary use, and the registration denotes

an instrument approved pursuant to these

rules and shall reflect the registration

date, the owner of the instrument, the

instrument serial number, the manufacturer,

and the model designation.

(2) Registered breath test instruments shall

be inspected by the Department at least once

each calendar year, and must be accessible to

the Department for inspection. Any

evidentiary breath te st instrument returned

from an authorized repair facility shall be

inspected by the Department prior to being

placed in evidentiary use. The inspection

validates the instrument's approval for

evidentiary use.

(3) Department inspections shall be

conducte d in accordance with Department

Inspection Procedures FDLE/ATP Form 35 - Rev.

August 2005 for the Intoxilyzer 5000 Series,

or Department Inspection Procedures -

Intoxilyzer 8000 FDLE/ATP Form 36 - Rev.

August 2005 for the Intoxilyzer 8000 ; and the

results r eported on FDLE/ATP Form 26 -

Department Inspection Report -- Rev. March 2004

for the Intoxilyzer 5000 Series, or FDLE/ATP

Form 41 - Department Inspection Report -

Intoxilyzer 8000 - Rev. August 2005 for the

Intoxilyzer 8000 .

(4) Department Inspectors sh all be employed

by the Department to register evidentiary

breath test instruments, to conduct

inspections and maintenance of breath test

instruments and related equipment and

facilities, to conduct and monitor training

classes, and to otherwise ensure comp liance

with Chapter 11D - 8, F.A.C. (emphasis added ) .

7. The inspection procedures applicable to the Intoxilyzer

8000 are set forth in FDLE/ATP Form 36, the "Department

Inspection Procedures" form, and have been incorporated into the

Florida Administrativ e Code by reference at rule 11D - 8.017.

8. The A TP inspectors have used a variety of methods to

document their observations of the instruments submitted for

inspection, including individual notes generated by the

inspectors.

9. In April 2012, the ATP created a form, called the

"Instrument Processing Sheet," to organize and track the passage

of each instrument through the inspection process.

10. The parties have stipulated that the Petitioners are

substantially affected by the Instrument Processing Sh eet form.

11. Although the Respondent does not require that the ATP

inspectors use the Instrument Processing Sheet, inspectors

uniformly use the form to document the receipt of the instruments

from local law enforcement agencies and their condition upon

receipt.

12. The form prompts inspectors to visually review the

physical condition of each instrument, including such items as

the case, keyboard, handle, feet, "tight screws , " and "dry gas

holder."

13. Additionally, the form is used to guide inspectors

through a review of the mechanical function of the instrument by

a series of "quality checks" performed prior to the actual

inspections. The checks are used to ascertain whether specified

components within the instrument are in good working order and to

document any related adjustments made to an instrument prior to

the inspection.

14. An instrument that requires repair outside the

expertise of the ATP is shipped to an authorized repair facility.

Upon the return of an instrument to the ATP from a repai r

facility, the ATP performs a full inspection of the instrument

before it is returned to a local agency. In November 2012, the

form was revised to document shipment of an instrument to a

repair facility.

15. The challenged form has not been adopted by rule. The

Petitioners assert that the form constitutes a "rule" that must

be subjected to statutory rulemaking requirements.

16. At the time of the hearing, the Respondent was

preparing a digital version of the form that would permit the

processing of e ach instrument to be tracked electronically.

17. One of the quality checks set forth on the form

verifies the mechanical operation of the instrument's "flow

sensor." A flow sensor monitors the passage of lung air through

an instrument during a breath al cohol test and triggers an

audible "tone" when the breath being generated by a test subject

is sufficient to provide a scientifically reliable breath sample.

1 8 . According to the form, an inspector should observe the

instrument's ability to differentiate between airflow levels by

conducting a series of specific air pressure tests. If the test

results indicate that the sensor responds inaccurately, the

sensor is calibrated to correct the response. The form prompts

the inspector to record the initial test results , as well as

post - calibration test results if calibration is required. The

flow sensor may also be replaced to correct a defect.

19 . After quality control checks have been completed, the

ATP inspection is conducted according to the procedure set forth

in FDLE/ATP Form 36. The results of the ATP inspection are

reported on FDLE/ATP Form 41, the "Department Inspection Report -

Intoxilyzer 8000" form, which is incorporated into the Florida

Administrative Code by reference at rule 11D - 8.017.

2 0 . The Respondent is not required by statute or rule to

record the specific results of a flow sensor test administered

prior to the annual inspection.

2 1 . The Respondent is required by FDLE/ATP Form 36 only to

ascertain and report whether the instrument is abl e to

distinguish adequate minimum sample volume from inadequate

minimum sample volume.

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.56, Fla. Stat.

2 3 . As provided at section 120.56(4)(b), the Petitioners

have the burden of establishing standing to bring this challenge ,

as well as to prove that the challenged statement constitutes a

"rule" as defined at section 120.52(16). If the Petitioners meet

their b urden, the burden then shifts to the Respondent to prove

that rulemaking to adopt the challenged statement as a rule is

not practicable or feasible. Pursuant to s ection 120.57(1)(k),

each party must meet its burden by a preponderance of the

evidence.

2 4 . The Petitioners have standing to bring this challenge

to the Respondent's form, but the Petitioners have failed to

establish that the challenged form is a "rule" and , accordingly ,

they have not met the burden.

2 5 . Section 120.52(16) provides, in releva nt part, the

following definition:

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

a ny requirement or solicits any information

not specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule. The term does

not include:

(a) Internal management memoranda which do

not affect either t he private interests of

any person or any plan or procedure important

to the public and which have no application

outside the agency issuing the memorandum.

2 6 . The evidence fails to establish that the challenged

form "implements, interprets, or prescribe s law or policy or

describes the procedure or practice requirements of an agency."

The evidence also fails to establish that the challenged form

"imposes any requirement or solicits any information not

specifically required by statute or by an existing ru le."

2 7 . R ule 11D - 8.004 requires that the ATP perform an annual

inspection of each alcohol breath test instrument and identi fies

the procedure that must be followed during the inspection as that

set forth in FDLE/ATP Form 6.

2 8 . The Instrument Processi ng Sheet is a form used to

document the receipt by the Respondent of the instruments

submitted by local agencies for inspection and to track the

instruments assessed by ATP inspectors. The form is also used to

guide a series of quality checks performed to evaluate and

restore the physical and mechanical condition of each instrument

prior to the formal FDLE/ATP Form 36 inspection.

29 . Not every step in the process must be the subject of

codification. The assessment of an instrument's operational

capacity prior to conducting an annual inspection is incidental

to determining whether the instrument meets the criteria set

forth on FDLE/ATP Form 36. In Wissel v. State , 691 So. 2d 507

(Fla. 2d DCA 1997), a Pinellas County defendant convicted of DUI

following a jury trial , appealed the conviction on the grounds

that the Respondent had not adopted rules governing the

preparation of the stock alcohol solutions used to test the

accuracy of the breath test instrument. The Second District

Court held "that procedures that are implicit and incidental to

procedures otherwise explicitly provided for in a properly

adopted rule or regulation do not require further codification by

a further adopted rule or regulation."

ORDER

Based on the foregoing Findings of Fact and Con clusions of

Law, it is ORDERED that the Petition filed by the Petitioners in

this case pursuant to section 120.56(4)(b) , Florida Statutes, and

seeking a determination that the Respondent's Instrument

Processing Sheet is a "rule" is hereby DISMISSED.

D ONE A ND ORDERED this 25th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June , 2013 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2012),

unless ot herwise noted.

COPIES FURNISHED:

Gerald M. Bailey, Commissioner

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Com mittee

Pepper Building, Room 680

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Robert Ralph Berry, Esquire

Eisenmenger, Berry and Peters, P.A.

5450 Village Drive

Rockledge, Florida 32955 - 6569

Ann Marie Johnson, Esquire

Department o f Law Enforcement

2331 Phillips Road

Tallahassee, Florida 32308 - 5333

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedin gs are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.