16-002579RX John David Rouse And Elizabeth G. Yoskin vs. Department Of Law Enforcement Status: Closed DOAH Final Order on Friday, September 9, 2016.

Summary: Petitioners failed to demonstrate that the agency's rule governing allowable range of error in alcohol breath testing instruments is arbitrary and capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN DAVID ROUSE and

ELIZABETH G. YOSKIN ,

Petitioner s ,

Case No. 16 - 2579RX

vs.

DEPARTMENT OF LAW ENFORCEMENT,

Respondent.

_______________________________/

FINAL ORDER

Pursuant t o notice, Lawrence P. Stevenson, Administrative

Law Judge, Division of Administrative Hearings, conducted a

formal hearing in the above - styled case on June 16 and 17, 2016,

in Tallahassee, Florida.

APPEARANCES

For Petitioner s : Christian A lexander Straile, Esquire

Post Office Box 5355

Gainesville, Florida 32627

For Respondent: Ann Marie Johnson, Esquire

Department of Law Enforcement

2331 Phillips Road

Tal lahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rule 11D - 8.002(1)

constitutes an invalid exercise of delegated legislative

authority.

PRELIMINARY STATEMENT

On May 10, 2016, Petitioner , John David Rouse , filed a

Ð Petiti on Seeking Determination t hat FDLE Rule 11D - 8.002 is an

Invalid Exercise of Delegated Legislative AuthorityÑ at the

Divisi on of Administrative Hearings (Ð DOAH Ñ ). On May 11, 2016,

an ÐAmended Petition Seeking Determination t hat FDLE Rule 11D -

8.002 is an In valid Exercise of Delegated Legislative AuthorityÑ

was filed at DOAH. The Amended Petition added a new Petitioner,

Elizabeth G. Yoskin, to the case. The case was scheduled for

hearing on June 2, 2016, in Tallahassee. One continuance was

granted on motio n of Petitioners and the case was rescheduled

for June 16, 2016, on which date it was convened. The hearing

could not be completed in the one day allotted , and so was

carried over to June 17, 2016, on which date it was completed.

Rule 11D - 8.002 sets fort h the definitions used by the

Department of Law Enforcement (ÐFDLEÑ) in the regulation of the

implied consent program authorized by section 316.1932(1)(a)2.,

Florida Statutes. Petitioners are challenging the validity of

rule 11D - 8.002(1), which defines th e term Ðacceptable range.Ñ

At the hearing, Petitioners offered the testimony of

Laura Barfield, a former manager of FDLEÓs Alcohol Testing

Program , who now owns and operates Forensic Toxicology and

Consulting Services; and Matthew Malhiot, the owner of For ensic

Alcohol Consulting and Training and, from 2002 through 2010, an

employee of FDLE in various capacities related to inspection and

maintenance of breath test instruments. Mr. Malhiot also

testified in rebuttal. PetitionersÓ Exhibits 3, 4, 7, 12, 23,

24, 26 through 28, 31, and 33 were admitted into evidence. 1/

FDLE offered the testimony of Brett Kirkland, the current

program manager of FDLEÓs A lcohol T esting P rogram. Dr. Kirkland

was accepted as an expert in forensic alcohol toxicology, the

pharmacol ogy of alcohol, the operation and maintenance of the

Intoxilyzer 8000, pharmacodynamics, pharmacokinetics, and

instrument and data analysis related to breath test instruments.

The parties stipulated to the admission of FDLEÓs Exhibits 1

through 13 and 15 through 43.

A two - volume Transcript of the hearing was filed at DOAH on

July 7, 2016. By O rder dated July 15, 2016, PetitionersÓ

stipulated motion to extend the time for filing proposed orders

was granted, and the parties were given until August 1, 2016 , to

file their proposed orders. Both parties timely filed their

P roposed F inal O rders. Both parties' proposals have been given

careful consideration in the preparation of this Final Order.

Unless otherwise indicated, all statutory references in

this Fin al Order are to the 2015 version of the Florida Statutes

and all references to r ules are to the current version of the

Florida Administrative Code.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire rec ord in this proceeding, the

following F indings of F act are made:

1. FDLE is the state agency responsible for the regulation

of the operation, inspection, and registration of breath test

instruments utilized under the driving and boating under the

influenc e and related provisions of c hapters 316, 322, and 327,

Florida Statutes. § 316.1932(1)(a)2., Fla . Stat. The cited

statute enumerates FDLE's powers under the Alcohol Testing

Program as follows, in relevant part:

The program shall:

a. Establish uniform criteria for the

issuance of permits to breath test

operators, agency inspectors, instructors,

blood analysts, and instruments.

b. Have the authority to permit breath test

operators, agency inspectors, instructors,

blood analysts, and instruments.

c. H ave the authority to discipline and

suspend, revoke, or renew the permits of

breath test operators, agency inspectors,

instructors, blood analysts, and

instruments.

d. Establish uniform requirements for

instruction and curricula for the operation

and ins pection of approved instruments.

e. Have the authority to specify one

approved curriculum for the operation and

inspection of approved instruments.

f. Establish a procedure for the approval

of breath test operator and agency inspector

classes.

g. Hav e the authority to approve or

disapprove breath test instruments and

accompanying paraphernalia for use pursuant

to the driving and boating under the

influence provisions and related provisions

located in th is chapter and chapters 322

and 327.

* * *

l. Promulgate rules for the administration

and implementation of this section,

including definitions of terms.

* * *

p. Have the authority to approve repair

facilities for the approved breath test

instruments, including the authority to set

criteria for ap proval . . . .

2. Petitioners are defendants in pending criminal

prosecutions in Marion County. Each has been charged with

Driving Under the Influence (ÐDUIÑ), in violation of section

316.193 . Pursuant to the implied consent law, 2/ each of the

Petition ers took a breath alcohol test that utilized the

Intoxilyzer 8000 breath alcohol testing instrument manufactured

by CMI, Inc. FDLE has not contested the standing of Petitioners

to initiate this proceeding.

3. In those criminal prosecutions, the state in tends to

use the results of the Intoxilyzer 8000 tests as evidence that

Petitioners had unlawful breath alcohol levels at the time of

their respective charged offenses.

4. Florida Administrative Code Chapter 11D - 8 sets forth

rules governing the implied co nsent program. These include

rules regarding the approval and disapproval of breath test

methods and instruments, and regulation of the operation,

inspection, and registration of breath test instruments for use

pursuant to the DUI statute. Chapter 11D - 8 also sets forth

rules related to the regulation of individuals who operate,

inspect , and instruct on breath test instruments.

5. Rule 11D - 8.002 sets forth the operational definitions

for the rule chapter. S ection (1) of rule 11D - 8.002 provides as

follows :

Acceptable Range - Î the results of alcohol

reference solutions and dry gas standard

analyses which fall within the following

ranges at each alcohol vapor concentration:

0.05 g/210L range is 0.045 to 0.055 g/210L;

0.08 g/210L range is 0.075 to 0.085 g/210 L;

0.20 g/210L range is 0.190 to 0.210 g/210L;

or the Alcohol Reference Solution gas

chromatographic results which fall within

the following ranges: 0.0605 g/100mL range

is 0.0586 to 0.0623 g/100mL; 0.0968 g/100 mL

range is 0.0938 to 0.0997 g/100mL; 0.2420

g/100mL range is 0.2347 to 0.2492 g/100mL.

6. Rule 11D - 8.002(9) defines Ðalcohol reference solutionÑ

as Ð a standard used to verify the calibration of a breath test

instrument consisting of a mixture of alcohol and distilled or

deionized water that will produce a known alcohol vapor

concentration at a specific temperature.Ñ Rule 11D - 8.002(20)

defines Ðdry gas standardÑ as Ða National Institute of Standards

and Technology or international equivalent traceable standard

consisting of a mixture of alcohol an d gas which produces a

known alcohol vapor concentration used to verify the accuracy of

a breath test instrument.Ñ Both alcohol reference solutions and

a dry gas standard are used in conducting annual FDLE

inspections of breath test instruments, as well a s by local law

enforcement agencies in conducting monthly inspections of their

instruments.

7. The three alcohol vapor concentrations set forth in the

rule are the alcohol reference solutions that FDLE uses during

inspections to verify the calibration of the breath test

instruments. A reference solution of a known value of alcohol

vapor concentration is placed in the machine. If the machine

fails to perform within the acceptable range for the reference

solution, it is removed from service for corrective action. The

acceptable range of error for an instrument is an average error

of no more than plus or minus .005g/210L, or 5%, whichever is

greater. For ease of reference, this range will henceforth be

referenced as the Ð5% standard.Ñ

8. Prior to 1992, t he former Department of Health and

Rehabilitative Services (ÐHRSÑ) was responsible for breath and

blood testing compliance under the implied consent law. HRSÓ

rules, then Florida Administrative Code C hapter 10D - 42, did not

define an acceptable range of er ror for alcohol reference

solutions and dry gas standard analyses. Sections 20 through 22

of Chapter 92 - 58, Laws of Florida, transferred the Alcohol

Testing Program to FDLE. FDLE first adopted chapter 11D - 8 on

Octo ber 31, 1993. The original version of r ule 11D - 8.003(7)

included the 5% standard as the Ðaccuracy standardÑ for test

instruments. The 5% standardÓs position in chapter 11D - 8 has

shifted since 1993, and the terminology has been changed from

Ðaccuracy standardÑ to Ðacceptable range,Ñ but the num erical

value of the accepted range for accuracy has not changed since

1993.

9. Rule 8D - 11.003 provides that all breath test

instruments must be evaluated in accordance with the procedures

set forth in FDLE/ATP Form 34 3/ prior to being approved for use

in Florida. The first paragraph of Form 34 states, Ð [o] nly

breath test instruments listed on the US Department of

Transportation Conforming Products List of Evidential Breath

Measurement Devices will be evaluated.Ñ The Conforming Products

List is a catalog of all evidentiary breath testing instruments

approved by the U . S . Department of Transportation as conforming

to the model specifications of breath testing devices published

in the Federal Register. See National Highway Traffic Safety

Administration, Con forming Products List of Evidential Breath

Alcohol Measurement Devices, 77 Fed. Reg. 35747 (June 14, 2012);

Model Specifications for Device s to Measure Breath Alcohol,

58 Fed. Reg. 48705 (Sept. 17, 1993).

10. The Intoxilyzer 8000 was added to the Conformi ng

Products List in 2002. See 67 Fed. Reg. 62091 (Oct. 3, 2002).

11. The version of rule 11D - 8.003(2) approving the

Intoxilyzer 8000 for use in Florida was proposed in July 2002

and became effective on November 5, 2002. See V ol. 28, N o. 30,

Fla. Admin. W., p. 3238, 3239 ( July 26, 2002) ; and V ol. 28,

N o. 44 , Fla. Admin. W., p. 4811 (Nov. 1, 2002). At that time, a

predecessor product, the Intoxilyzer 5000, was kept on the list

of instruments approved for use in Florida.

12. The Intoxilyzer 5000 was del eted from the approved

list by an amendment to rule 11D - 8.003(2) that took effect on

July 29, 2015. The Intoxilyzer 8000 is now the only breath test

instrument approved by FDLE.

13. Despite its continued presence on the list of FDLE -

approved instruments, the Intoxilyzer 5000 was in fact

eliminated from evidentiary use in Florida on March 27, 2006.

On the same date, the Intoxilyzer 8000 was placed into

evidentiary use as the sole breath test instrument used in

Florida.

14. Laura Barfield, who served as p rogram manager of the

Alcohol Testing Program from 2001 through the spring of 2013,

and Matthew Malhiot, who worked in the Alcohol Testing Program

for eight years in various capacities related to inspection and

maintenance of breath test instruments, testi fied at length

about the transition from the Intoxilyzer 5000 to the

Intoxilyzer 8000 , and the similarities and differences between

the machines. Both machines employ infrared spectroscopy to

determine the amount of alcohol in a sample.

15. Ms. Barfiel d explained that molecules absorb infrared

light at specific wavelengths. The infrared spectrum of a

sample is obtained by passing a beam of infrared light through

the sample. The alcohol molecule will absorb specific

wavelengths of infrared light in a u nique and consistent way.

Based on the amount of absorption and the amount of

transmittance, meaning the amount of light that remains after

absorption, a measurement is correlated to a response from the

calibration of the instrument.

16. The Intoxilyzer 5000 and the Intoxilyzer 8000 use

different methods to measure infr ared light. The Intoxilyzer

5000 had three filters mounted on a wheel that spun at

approximately 2 ,100 revolutions per minute. The filters were

each at a different wavelength: 3.39 µm, 3.48 µm, and 3.80 µm.

It had a single detector that measured the light coming through

each of the three filters. The Intoxilyzer 8000 has two

detectors with a filter in front of each, one set at 3.4 µm , and

one at 9.4 µm.

17. The light source for the Intoxilyzer 5000 was a

projector lamp similar to that found on a Power Point projector.

The Intoxilyzer 8000 uses a pulsing infrared light source. The

Intoxilyzer 5000Ós light source was separate and had to be

focused into the sample chamber, then refocu sed out of the

sample chamber to the detector as the light passed through the

wheel. This system caused some inevitable dispersion of the

light. In the Intoxilyzer 8000, all components are internal to

the instrument, leaving no room for dispersion of the light.

18. Mr. Malhiot testified that the Intoxilyzer 5000 was

developed in the 1970s and had computing power similar to an old

Atari game system. The newer Intoxilyzer 8000 has much more

computing power and data storage capability. The Intoxilyzer

8 000 can be accessed remotely and is portable. A police officer

can plug it into the cigarette lighter of his or her patrol car.

19. Mr. Malhiot described the Intoxilyzer 5000 as similar

to a 1960s car with a V - 8 engine and the Intoxilyzer 8000 as a

Ðfu el - injected Ferrari.Ñ C MI, Inc.Ós specifications sheet for

the Intoxilyzer 8000 states that the instrumentÓs accuracy is

Ð ± 3% or ± 0.003G/210L (whichever is higher).Ñ The Intoxilyzer

5000 was represented as accurate within plus or minus 5%.

20. Local law enforcement agencies throughout the state

own their breath test instruments. Rule 11D - 8.004(1) provides

that FDLE shall register and inspect each instrument for

accuracy and reliability prior to its being placed into

evidentiary use by an agency. Ru le 11D - 8.004(2) provides that

registered breath test instruments shall be inspected by FDLE at

least once each calendar year to ensure accuracy and

reliability.

21. Rule 11D - 8.006 provides that evidentiary breath test

instruments must be inspected by an a gency inspector at least

once each calendar month. The agency is also required to

inspect the instrument when it is taken out of evidentiary use

and prior to returning it to evidentiary use.

22. Petitioners Ó contention is that the definition of

Ðacceptab le range , Ñ set forth in rule 11D - 8.002(1) , is outdated

and obsolete. The numerical values in the definition of

Ðacceptable rangeÑ have remained at the same 5% standard since

rule 11D - 8.002 was first adopted in 1993.

23. The federal standard for placeme nt on the Conforming

Products List is also the 5% standard.

24. Petitioners point to the fact that the specifications

sheet for the Intoxilyzer 8000 states that the instrumentÓs

accuracy is Ð ± 3% or ± 0.003G/210L (whichever is higher).Ñ

Petitioners argue that it is arbitrary and capricious for FDLEÓs

rule to continue employing the 5% standard, which predates even

the Intoxilyzer 5000, when the manufacturerÓs specifications for

the Intoxilyzer 8000 plainly state that it is accurate to within

plus or minus 3%.

25. Petitioners further argue that FDLE is in fact

applying the 3% standard in some of its own inspection

procedures and that it should be required to codify its own

internal standard and practice by rule. Petitioners note that

FDLEÓs own Alcohol Tes ting Program Procedures Manual (the

ÐManualÑ) provides a set of quality control checks that require

the Intoxilyzer 8000 to meet the 3% standard.

26. Ms. Barfield testified that the Manual was written to

standardize FDLEÓs lab practices. The Manual has never been

adopted by reference in a rule. Dr. Brett Kirkland, the current

program manager of the Alcohol Testing Program, credibly

testified that it would be impractical and unproductive for FDLE

to attempt to adopt all of its laboratoryÓs standard oper ating

procedures by rule. Current lab methodologies would be locked

in place by rule and would not give the analyst discretion ,

should lab equipment or some other factor change. The agency

would have to initiate rulemaking in order to make the smallest

c hange in its methodologies. Dr. Kirkland opined that this

would devolve into a hopeless endeavor because FDLEÓs rulemaking

could never keep up with the science that leads to modifications

in laboratory operating procedures.

27. The portion of the Manual in question is section 2.19,

titled, ÐInstrument Quality Control Check Procedures,Ñ which

states by way of introduction: ÐFor quality control purposes

and prior to conducting a Department inspection, the following

quality control checks will be conducted. Ñ

28. Among the listed quality control checks are ÐStability

Check Procedures.Ñ These procedures require the analyst to

perform three repetitions each of 0.05, 0.08, and 0.20g/210L

alcohol reference solutions and three repetitions of a

0.08g/210L dry g as standard. The results of these analyses must

be as follows: for the 0.05 standard, within a lower limit of

0.047 and an upper limit of 0.053; for the 0.08 standard, within

a lower limit of 0.077 and an upper limit of 0.083; and for the

0.20 standard, within a lower limit of 0.194 and an upper limit

of 0.206. These values are consistent with the plus or minus 3%

set forth in the manufacturerÓs specifications.

29. If any of the stability check measurements fall

outside of the prescribed range, the anal yst is directed first

to determine whether the cause is user error or external

equipment. If the cause is not external equipment or user

error, the analyst must perform either an optical bench

calibration or have the instrument sent to an authorized repai r

facility of the owning agencyÓs choice.

30. This repair is performed prior to the FDLE inspection,

meaning that the agency is required to pay for repair of a

machine that has failed to meet the ManualÓs 3% standard,

without regard to whether it meets the 5% standard imposed by

the rule. From this, Petitioners argue that FDLE is in fact

imposing the 3% requirement on local law enforcement agencies

and should be required to formally adopt the 3% standard in rule

11D - 8.002(1). 4/

31. Dr. Kirkland describ ed the quality control procedures

as providing a ÐsnapshotÑ of a given instrumentÓs function.

FDLE uses the quality control check to determine whether to

perform a calibration on an instrument. If the instrument is

falling near the 3% margin, it is reali gned to bring it closer

to the target range. Dr. Kirkland described the quality control

check as a good way to ensure that the instrument will meet the

acceptable range criteria during the inspection. He noted that

in any form of testing, it is good qual ity assurance to set

slightly narrower constraints than what is allowable.

32. Only after the instrument has passed the FDLE quality

control checks, including the stability check, may it proceed to

the more complex FDLE inspection, which is conducted acco rding

to the 5% standard set forth in rule 11D - 8.002(1).

33. The monthly agency inspections are also conducted

using the 5% standard set forth in rule 11D - 8.002(1).

34. Dr. Kirkland testified as to the differences between

the FDLE quality control checks and annual inspections on the

one hand and the monthly agency inspections on the other. 5/

First and foremost, the FDLE personnel are better trained. FDLE

personnel have been trained specifically at the manufacturerÓs

labs to work with the instruments the y are inspecting. The FDLE

inspections are performed in an ATP lab under better controlled

conditions than the agency inspections, which are generally

conducted in the same room where the breath testing occurs. The

FDLE inspectors use simulators that the y keep under strict

temperature control and regularly calibrate.

35. Dr. Kirkland stated that the local agency personnel

have been trained on how to use the breath test instrument, but

not on how to take it apart and how it functions internally.

They a re trained to push a button and follow procedures. Agency

inspectors are able to discover when a machine is not working

properly but are not traine d to diagnose the problem.

Dr. Kirkland opined that the training of the FDLE inspectors is

the main reason the agency is able to use the 3% standard for

realigning an instrument.

36. Dr. Kirkland pointed out differences in the

inspections themselves. The local agency inspection involves a

triplicate analysis of each individual standard. The FDLE

inspection i nvolves ten analyses of the individual standard,

measures barometric pressure, and does a minimum volume sample

check. Both inspections check for interference to make sure

that ethanol is being measured rather than some other chemical

in the breath.

37. Dr. Kirkland explained that FDLE sees a distinction

between the accuracy statement set forth in the specifications

for the Intoxilyzer 8000 and the acceptable range set forth in

the rule. He testified that th e specifications represent

CMI, Inc.Ós represen tation as to the instrumentÓs accuracy as a

stand - alone proposition, without reference to factors external

to the instrumentÓs analytical capability. Other variables

include the dry gas standards and wet bath simulators used in

the testing and the tubing and temperature controls associated

with the simulators. The skill, training , and experience of the

operator may have an effect on the measurement.

38. Dr. Kirkland testified that, while it is possible to

achieve the 3% standard under controlled laborato ry conditions,

the 5% standard is more realistic in the day - to - day usage of the

breath test instruments. The Intoxilyzer 8000 is capable of 3%

Ðon really good days,Ñ but the specifications on the external

items can introduce a variation to the measurement s. In

practice, the instrument would have to work better than its

specifications to stay in service if the acceptable range were

lowered to the 3% standard.

39. Dr. Kirkland noted that the 5% standard is recommended

as the acceptable range by the federa l National Highway Traffic

Safety Administration and by the International Organization of

Legal Metrology, a treaty organization that sets international

standards for measuring devices. Dr. Kirkland was unaware of

any other state that uses an acceptable r ange criterion of less

than 0.005 or 5%.

40. Dr. Kirkland testified that FDLE looks to the federal

regulations promulgated by the National Highway Traffic Safety

Administration for guidance as to whether the acceptable range

defined in rule 11D - 8.002(1) s hould be amended. FDLE also stays

apprised of the scientific literature produced by individual

laboratories and educational institutions. Dr. Kirkland

testified that the 5% standard remains the consensus acceptable

range of federal and state governments and of the scientific

literature.

41. Ms. Barfield, the former manager of the Alcohol

Testing Program, agreed that the Ðacceptable rangeÑ includes not

only the instrument specifications , but also the accuracy of the

simulators, the environment, and the un certainty of the dry gas

standards. However, she disagreed that the specification sheet

for the Intoxilyzer 8000 excludes factors external to the

instrumentÓs analytical capability. Ms. Barfield stated that

the 3% standard of the specification by necessi ty incorporates

all of the listed variables.

42. Ms. Barfield explained that in order to establish the

accuracy standard for the Intoxilyzer 8000, the manufacturer had

to make measurements using external devices and had to account

for the environment in w hich the instrument was used. She

testified that ÐYou donÓt change the accuracy standard of an

instrument because itÓs going to be used in a messy room. You

need to account for that, control that, limit it, and then use

the device.Ñ

43. Ms. Barfield o pined that the rule should employ the

manufacturerÓs accuracy specification because the manufacturer

has established the 3% standard as the capability of its device,

accounting for all the other variables. She had intended to

change the rule to a 3% or 4% standard as part of her overall

plan to automate the breath test instrument inspection process,

but she left her position as manager of the Alcohol Testing

Program before her plan could be enacted. Ms. Barfield believed

that the lower standard would incr ease public confidence in the

accuracy of the tests.

44. Mr. Malhiot testified that during the switch from the

Intoxilyzer 5000 to the Intoxilyzer 8000 in 2006, FDLE had

internal discussions about dropping the calibration of the

instrument down to a 3% s tandard for purposes of the Ðaccepted

rangeÑ in the rule. He stated that the decision was made to

wait two years in order to collect data to establish how many

more instruments would fail inspection under a 3% standard. He

stated that the budget crisis o f 2008 put an end to any ideas of

wholesale rule changes at FDLE.

45. Mr. Malhiot could not name another state that uses the

3% standard, but stated that in his experience he believed that

the Intoxilyzer 8000 could meet the 3% standard in the field.

CONC LUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding according to s ection 120.56(1) and (3) , Florida

Statutes .

47. Section 120.56, provides in pertinent part:

(1) GENERAL PROCEDURES FOR CHALLENGING THE

VALIDITY OF A RULE OR A PROPOSED RULE. --

(a) Any person substantially affected by a

rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition challenging the validity

of a proposed or adopted rule under this

section must state:

1. The particular provisions alleged to be

invalid and a statement of the facts or

grounds for the allege d invalidity.

2. Facts sufficient to show that the

petitioner is substantially affected by the

challenged adopted rule or would be

substantially affected by the proposed rule.

* * *

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS. --

(a) A petition alleging the invalidity of

an existing rule may be filed at any time

during which the rule is in effect. The

petitioner has the burden of proving by a

preponderance of the evidence that the

existing rule is an invalid exercise of

delegated legislative au thority as to the

objections raised.

48. Petitioners , John David Rouse and Elizabeth G. Yoskin ,

have been charged with DUI and were subjected to a breath

alcohol test pursuant to s ections 316.1932, 316.1933, and

316.1934. As such, they are affected pe rsons with standing to

challenge the validity of rule 11D - 8.002(1). See Lanoue v. Fla .

Dep Ó t of Law Enf . , 751 So. 2d 94 (Fla. 1st DCA 1999).

49. As the moving party asserting the affirmative by

attacking the validity of an existing agency rule, Petition ers

in this case retain the burden of proof throughout the entire

proceeding. Beshore v. DepÓt of Fin. Servs. , 928 So. 2d 411,

414 (Fla. 1st DCA 2006); Espinoza v. DepÓt of Bus. & Prof Ól

Reg. , 739 So. 2d. 1250, 1251 (Fla. 3d DCA 1999); Balino v. DepÓt

of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977); § 120.56(3) , Fla.

Stat .

50. The party attacking an existing rule has the burden to

prove that the r ule constitutes an invalid exercise of delegated

legislative authority. Cortes v. State Bd . of Regents , 655

So. 2d 132, 136 (Fla. 1st DCA 1995). The standard of proof is a

preponderance of the evidence. See § 120.56(3) , Fla. Stat .

51. An Administrative Law Judge may invalidate an existing

r ule only if it is an invalid exercise of delegated legislative

authority . See § 120.56(1)(a) and (3)(a) , Fla. Stat .

52. Section 120.52(8) defines Ð invalid exercise of

delegated legislative authority Ñ to mean:

[A]ction that goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rul e is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague , fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it i s adopted without thought

or reason or is irrational; or;

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objec tives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties grante d by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

53. Petitioners specifically allege that rule 11D - 8.002(1)

was rendered invalid at the time FDLE adopted the Intoxilyzer

8000 as the sole approved breath testing instrument in the

state. They contend that it is arbitrary and capricious for

FDLEÓs rule to maintain a 5% acceptable range standard when the

Intoxilyzer 8000Ós manufacturer specifications state that its

accuracy range is plus or minus 3%.

54. Section 120.52(8)(e) provides: Ð A rule is arbitrary

if it is not supported by logic or the necessary facts; a rule

is capricious if it is adopted without thought or reason or is

irrational. Ñ Similarly, case law provides that an Ð arbitrary Ñ

decisio n is one not supported by facts or logic, or despotic,

and a Ð capricious Ñ decision is one taken irrationally, or

without thought or reason. Bd. of Clinical Lab. Pers. v. Fla.

Ass Ón of Blood Banks , 721 So. 2d 317, 318 (Fla. 1st DCA 1998);

Bd. of Trs. of th e Int. Impust Fund v. Levy , 656 So. 2d

1359, 1362 (Fla. 1st DCA 1995). In undertaking this analysis,

the undersigned is mindful that these definitions:

[A] dd color and flavor to our traditionally

dry legal vocabulary, but do not assist an

objective l egal analysis. If an

administrative decision is justifiable under

any analysis that a reasonable person would

use to reach a decision of similar

importance, it would seem that the decision

is neither arbitrary nor capricious.

Dravo Basic Materials Co., Inc. v. DepÓt of Transp. , 602 So. 2d

632, 635 n.3 (Fla. 2d DCA 1992).

55. Petitioners have not established that rule 11D -

8.002(1) is arbitrary or capricious. Dr. Kirkland testified as

to FDLEÓs rationale for declining a move to the 3% standard,

including his opinion that the Intoxilyzer 8000 may not be

capable of meeting the 3% standard under field conditions. It

is one thing to meet the standard in the controlled conditions

of an FDLE lab with highly trained FDLE inspectors. It might be

quite another t hing to meet the standard at 3 :00 a.m. in a local

law enforcement agencyÓs holding cell. Dr. Kirkland reasonably

opined that the 5% standard takes into account all the variables

external to the Intoxilyzer 8000 itself, and is consistent with

the accuracy standards in force in nearly every other state and

accepted by the National Highway Traffic Safety Administration.

56. Ms. Barfield and Mr. Malhiot disagreed with

Dr. Kirkland. 6/ Ms. Barfield believed that CMI , Inc.Ós

manufacturer specifications for the Intoxilyzer 8000 included

all external factors. Both Ms. Barfield and Mr. Malhiot

credibly testified that FDLE actively considered changing the

acceptable range standard subsequent to adoption of the

Intoxilyzer 8000. They each made reasonable arguments as to why

FDLE might consider changing the standard. They did not

establish that rule 11D - 8.002(1) was rendered arbitrary and

capricious by FDLEÓs decision to adopt the 5% standard for the

Intoxilyzer 8000 .

57. Petitioners established that it would not b e

unreasonable for FDLE to commence rulemaking to change the

Ðacceptable rangeÑ standard from plus or minus 5% to plus or

minus 3%. Petitioners did not establish that the current rule

11D - 9.002(1) is an invalid exercise of delegated legislative

authority because it is arbitrary and capricious.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the Petition Seeking Determination t hat FDLE

Rule 11D - 8.002 is an Invalid Exercise of Delegated Legislative

Authority is d ismissed.

DONE AND ORDERED this 9 th day of September , 2016 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

Tallahassee, Florida 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 9 th day of September , 2016 .

ENDNOTE S

1/ Some confusion was raised, at least in the mind of the

undersigned, by PetitionersÓ numeration of their exhibits.

Counsel numbered the exhibits , but during the hearing , often

referenced them by the tab numbers in his exhibit notebook,

which did not match the exhibit numbers. In PetitionersÓ

exhi bit notebook, the exhibit number plus six equals the tab

number, as follows: Exhibit 3 is Tab 9; Exhibit 4 is Tab 10;

Exhibit 7 is Tab 13; Exhibit 12 is Tab 18; Exhibit 23 is Tab 29;

Exhibit 24 is Tab 30; Exhibit 26 is Tab 32; Exhibit 27 is

Tab 33; Exhibi t 28 is Tab 34; Ex hibit 31 is Tab 37; and

Exhibit 32 is Tab 38.

2/ Sections 316.1932, 316.1933, and 316.1934, Florida Statutes,

are collectively referred to as the implied consent law. See

Robertson v. State , 604 So. 2d 783, 789 n.4 (Fla. 1992).

3/ ÐAT PÑ stands for the Alcohol Testing Program within FDLE.

4/ PetitionersÓ argument on this point raises the question

whether FDLE is imposing an unadopted rule on local law

enforcement agencies by requiring them to repair machines that

have not been fully i nspected and therefore are not definitively

out of compliance with chapter 11D - 8. Petitioners did not raise

the question of the Manual being an agency statement that is an

unadopted rule, and their standing to bring such a challenge is

doubtful based on t he record. See Lanoue v. Fla . Dep Ó t of Law

Enf . , 751 So. 2d 94, 99 - 100 (Fla. 1st DCA 1999)(DUI defendant

had standing to challenge portions of chapter 11D - 8, but did not

have standing to challenge non - rule policies that did not have

Ðdirect impactÑ on def endant . ).

5/ FDLE prescribes different forms for the inspections. The

agency inspection is referenced in FDLE/ATP Form 39. The

Department inspection is set out in FDLE/ATP Form 36.

6/ The undersigned declines FDLEÓs invitation to disregard the

testim ony of Ms. Barfield as tainted by the circumstances of her

departure from FDLE. Given that her view did not prevail in any

event, the undersigned sees no need to revisit Ms. BarfieldÓs

employment history.

COPIES FURNISHED:

Jason Jones , General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

(eServed)

Christian Alexander Straile, Esquire

Post Office Box 5355

Gainesville, Florida 32627

(eServed)

Ann Marie Johnson, Esquire

Department of Law Enforcement

2331 Phillips Road

Tallahassee, Florida 32308

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Department of S tate

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Richard L. Swearingen, Commissioner

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Alexandra Nam

Departme nt of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

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, Flor ida

Statutes. Review proceedings 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 da ys 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 r esides or as otherwise provided by law.