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 “...

 

DEPARTMENT OF LAW ENFORCEMENT

Division of Local Law Enforcement Assistance

RULE NOS.:RULE TITLES:

11D-8.002Definitions

11D-8.003Approval of Breath Test Methods and Instruments

11D-8.0035Approval of Alcohol Reference Solution and Sources

11D-8.004Department Inspection and Registration of Breath Test Instruments

11D-8.006Agency Inspection of Breath Test Instruments

11D-8.007Approved Breath Test Instruments - Access, Facility Requirements, Observation Period, and Operational Procedures

11D-8.0075Agency Retention of Records

11D-8.008Breath Test Operator and Agency Inspector

11D-8.010Qualifications for Instructors

11D-8.011Approval of Blood Alcohol Test Methods

11D-8.013 Blood Alcohol Permit - Analyst

11D-8.017Forms

PURPOSE AND EFFECT: Subsection 11D-8.002(12), F.A.C.: 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.

Subsection 11D-8.002(13), F.A.C.: 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.

Subsection 11D-8.002(14), F.A.C.: 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.

Subsection 11D-8.002(20), F.A.C.: 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.

Subsection 11D-8.002(22), F.A.C.: 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.

Subsections 11D-8.002(23)-(25), (27)-(28), F.A.C.: Renumbers these rule paragraphs due to additions in this rule section.

Subsection 11D-8.002(26), F.A.C.: 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.

Subsection 11D-8.003(1), F.A.C.: Makes grammatical changes and updates the type of breath test method to reflect the scientific name “Infrared Spectroscopy”.

Subsection 11D-8.003(2), F.A.C.: 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 Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.

Subsection 11D-8.003(3), F.A.C.: Repeals this paragraph because Florida no longer uses the Intoxilyzer 5000 instrument, and renumbers the rule paragraph.

Subsection 11D-8.003(4), F.A.C.: Renumbers the rule paragraph due to a deletion in this rule section.

Subsection 11D-8.003(5), F.A.C.: 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.

Paragraph 11D-8.0035(2)(b), F.A.C.: 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 Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.

Subsection 11D-8.004(1), F.A.C.: 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.

Subsection 11D-8.004(2), F.A.C.: Defines the purpose of required Department Inspections of the breath test instruments and when these inspections must occur to ensure accuracy and reliability.

Subsection 11D-8.004(3), F.A.C.: 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 Chapter 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.

Subsection 11D-8.006(1), F.A.C.: 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 Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.

Subsection 11D-8.006(2), F.A.C.: 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.

Subsection 11D-8.007(1), F.A.C.: 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 subsection 11D-8.002(13), F.A.C.

Subsection 11D-8.007(4), F.A.C.: 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 Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.

Subsection 11D-8.007(5), F.A.C.: 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.

Subsections 11D-8.075(1)-(2), F.A.C.: 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.

Paragraph 11D-8.008(1)(e), F.A.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 Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.

Rule 11D-8.008(2)(c), F.A.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 Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.

Subsection 11D-8.008(3), F.A.C.: Defines the frequency of continuing education requirements to clarify and add specificity to the rule.

Subsection 11D-8.008(5), F.A.C.: 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.

Subsection 11D-8.008(7), F.A.C.: Adds requirements to activate an expired permit created in Subsection 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.

Subsection 11D-8.010(2), F.A.C.: Adds the rule reference for the maintenance requirements of Breath Test Instructor certification to clarify and add specificity to the rule.

Subsection 11D-8.011(1), F.A.C.: 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.

Rule 11D-8.013(1), F.A.C.: 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 Chapter 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.

Subsection 11D-8.0013(3), F.A.C.: 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.

Paragraph 11D-8.013(3)(g), F.A.C.: 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.

Subsection 11D-8.013(4), F.A.C.: 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.

Rule 11D-8.017, F.A.C.: 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.

SUMMARY: Adds the phrase “on a single Form 38 affidavit” to the definition of “Approved Breath Alcohol Test”; removes “the Department of Law Enforcement” from the definition of authorized repair facility; adds the word “human” to the definition of blood; names the National Institute of Standards and Technology or international equivalent traceable standards as the “dry gas standard”; defines “instrument registration”; defines the “4-year permit cycle” and specifies the initial 4-year anniversary; removes the Intoxilyzer 5000 instrument; reincorporates the Instrument Evaluation Procedures, FDLE/ATP Form 34; clarifies that the Alcohol Testing Program is to evaluate software and requires that an approved make and model breath test instrument remains approved until disapproved by the Department; reincorporates the Certificate of Assurance FDLE/ATP Form 32; requires that each breath test instrument shall be inspected; defines the purpose of required Department inspections of the breath test instruments and when they must occur; reincorporates the Department Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 41; repeals the Department Inspection Report FDLE/ATP Form 26; repeals the Agency Inspection Procedures FDLE/ATP Form 16 and the Agency Inspection Report FDLE/ATP Form 24; reincorporates the Agency Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 39 and Agency Inspection Report – Intoxilyzer 8000 FDLE/ATP Form 40; adds “Department” as an authorized entity to remove the cover of the Intoxilyzer 8000 evidentiary breath test instrument; repeals the Breath Test Results Affidavit FDLE/ATP Form 14; reincorporates the Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37 and the Breath Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38; repeals the Breath Test Log FDLE/ATP Form 13; removes the agency inspection print cards and breath test log record requirements; incorporates the Breath Test Permit Application FDLE/ATP Form 8; defines the frequency of continuing education requirements; defines when a breath test operator or agency inspector permit expires for failing to complete the required mandatory continuing education; adds the requirements to activate an expired permit to obtain a valid breath test operator or agency inspector permit; adds the rule reference for the Breath Test Instructor certification requirements to maintain instructor certification; removes alcohol dehydrogenase (enzymatic) as an approved blood alcohol test method; incorporates the Application for Permit to Conduct Blood Alcohol Analyses FDLE/ATP Form 4; removes the requirements for and approval of enzymatic analytical procedures based on alcohol dehydrogenase; removes approval of substantial changes to a laboratory facility by the Department; repeals all forms listed in Rule 11D-8.017, F.A.C. and incorporates active forms throughout the rule chapter; makes grammatical revisions; and renumbers paragraphs.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed rule is not expected to exceed any of the criteria set forth in Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(a), (b), 327.352(1)(b)3. FS.

LAW IMPLEMENTED: 316.1932(1)(b)2., 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Wednesday, May 13, 2015, 1:00 p.m.

PLACE: Florida Department of Law Enforcement, 2331 Phillips Road, Tallahassee, Florida 32308

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: The Alcohol Testing Program at [phone], [e-mail] or write to Florida Department of Law Enforcement, Criminal Justice Professionalism, Alcohol Testing Program, 2331 Phillips Road, Tallahassee, Florida 32308. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: The Alcohol Testing Program at [phone], [e-mail] or write to Florida Department of Law Enforcement, Criminal Justice Professionalism, Alcohol Testing Program, 2331 Phillips Road, Tallahassee, Florida 32308

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

11D-8.002 Definitions.

(1)through(11) No change.

(12) Approved Breath Alcohol Test – a minimum of two samples of breath collected within fifteen minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level, on a single Form 38 affidavit. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.

(13) Authorized Repair Facility – the Department, the breath test instrument manufacturer, or an entity authorized by the breath test instrument manufacturer to service and repair such breath test instrument.

(14) Blood – human whole blood.

(15) through (19) No change.

(20) Dry Gas Standard – a National Institute of Standards and Technology or international equivalent traceable standard consisting of a mixture of alcohol and gas which produces a known alcohol vapor concentration used to verify the accuracy calibration of a breath test instrument.

(21) No change.

(22) Instrument Registration – when issued by the Department, certifies that the specified breath test instrument meets the requirements of Rule 11D-8.003 and Rule 11D-8.004, F.A.C, and is authorized to be placed into evidentiary use. A breath test instrument registration remains valid until relinquished by the agency or suspended or revoked by the Department.

(23)(22) Methods – types of alcohol analyses approved by the Department to conduct chemical or physical tests of blood or breath.

(24)(23) Mouth Alcohol Solution – a mixture of alcohol and distilled or deionized water provided by the Department.

(25)(24) Permit – when issued by the Department, certifies that the holder has met all necessary qualifications, remains in full compliance with these rules and is authorized to perform all related duties. A permit is issued only to a qualified applicant and remains valid and in full effect until determined otherwise by the Department.

(26) Permit Cycle – the 4-year period in which continuing education requirements shall be satisfied. The initial cycle due date is June 30th of the fourth year following the initial permit date. Subsequent cycles will run for 4-year periods from the initial cycle due date.

EXAMPLE:

Initial Permit DateNovember 21, 2012

4-year Anniversary DateNovember 21, 2016

Continuing Education Due Date/Initial Cycle Due DateJune 30, 2017

(27)(25) Reference Sample Device – a device, also known as a simulator, that produces a known vapor concentration by the passage of air through a liquid.

(28)(26) Target Concentration – a gas chromatographic result equivalent to the following known alcohol vapor concentrations of alcohol reference solution: for 0.05 g/210L the target concentration is 0.0605 g/100mL; for 0.08 g/210L the target concentration is 0.0968 g/100mL; for 0.20 g/210L the target concentration is 0.2420 g/100mL.

Specific Authority 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(a), (b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b)2., 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS. History–New 10-31-93, Amended 1-1-97, 7-6-99, 7-29-01, 11-5-02, 12-9-04, 3-27-06, ___________.

 

11D-8.003 Approval of Breath Test Methods and Instruments.

(1) The approved breath test Department has approved the following method(s) for evidentiary breath testing is: Infrared Spectroscopy Light Test, also known as Infrared Light Absorption Test.

(2) The Department approves breath test methods and new instrumentation to ensure the accuracy and reliability of breath test results. The approved breath test instrument make and model is the Department has approved the following breath test instrumentation for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series – including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program; and CMI, Inc. Intoxilyzer 8000 using software evaluated by the Department in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34, revised March 2004, ______________________, hereby incorporated by reference. This form may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302.– Rev. March 2004.

(3) The Department has approved the following options for use with Intoxilyzer 5000 Series instruments: keyboard; simulator recirculation; sample capture; pressure switch setting at no less than two inches and no more than six inches of water.

(3)(4) A Department inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument.

(4)(5) The Department shall conduct evaluations for approval of new instrumentation under subsection (2) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2004.

(5)(6) The availability or approval of new instruments, evaluation of software, options or modifications does not negate the approval status of previously approved instruments, or evaluated software, options or modifications. An approved make and model of a breath test instrument remains approved until disapproved by the Department.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), (b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS. History–New 10-31-93, Amended 1-1-97, 7-29-01, 11-5-02, 12-9-04, __________.

 

11D-8.0035 Approval of Alcohol Reference Solution and Sources.

(1) No change.

(2) The Department shall approve each lot of alcohol reference solution prior to distribution for use in Florida.

(a) No change.

(b) The Department shall notify the source that the approved lots may be distributed for use in Florida, and shall issue a Certificate of Assurance, FDLE/ATP Form 32 revised March 2001, _____________________, hereby incorporated by reference. This form may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302. – Rev. March 2001.

(3) through (4) No change.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3., (d) FS. Law Implemented 316.1932(1)(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS. History–New 7-6-99, Amended 7-29-01, 12-9-04, ___________.

 

11D-8.004 Department Inspection and Registration of Breath Test Instruments.

(1) The Department shall register and inspect each individual inspect a breath test instrument for accuracy and reliability prior to such instrument being initially placed into evidentiary use by an agency. The inspection validates that the instrument’s approval for evidentiary use, and the registration completes that instrument’s approval denotes an instrument approved pursuant to these rules. The registration 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 to ensure accuracy and reliability, and must be accessible to the Department for inspection. A department inspection must be conducted subsequent to repair and Any evidentiary breath test 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 conducted in accordance with Department Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 36, revised August 2005, ______________________, hereby incorporated by reference,– Rev. August 2005 for the Intoxilyzer 8000; and the results reported on the 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, FDLE/ATP Form 41, revised August 2005, hereby incorporated by reference. These forms may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302. – Rev. August 2005 for the Intoxilyzer 8000.

(4) No change.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS. History–New 10-31-93, Amended 1-1-97, 7-29-01, 11-5-02, 12-9-04, 3-27-06,__________.

 

11D-8.006 Agency Inspection of Breath Test Instruments.

(1) Evidentiary breath test instruments shall be inspected by an agency inspector at least once each calendar month. The agency inspection shall be conducted in accordance with the Agency Inspection Procedures FDLE/ATP Form 16 – Rev. March 2004 for the Intoxilyzer 5000 Series, or Agency Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 39, revised August 2005, ______________________, hereby incorporated by reference – Rev. August 2005 for the Intoxilyzer 8000; and the results reported on FDLE/ATP Form 24 – Agency Inspection Report – Rev. March 2001 for the Intoxilyzer 5000 Series, or FDLE/ATP Form 40 – Agency Inspection Report – Intoxilyzer 8000 FDLE/ATP Form 40, created March 2004, hereby incorporated by reference. These forms may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302. Agencies will be provided blank forms upon request and without cost for their alcohol testing program use. – March 2004 for the Intoxilyzer 8000.

(2) Whenever an agency relocates an Intoxilyzer 5000 evidentiary breath test instrument for use at another facility, an agency inspection shall be conducted prior to the instrument’s removal, and another inspection shall be conducted prior to the instrument’s use for evidentiary breath testing at the new facility. A mobile testing unit is considered an agency facility.

(2)(3) Whenever an instrument is taken out of evidentiary use, the agency shall conduct an agency inspection. The agency shall also conduct an agency inspection prior to returning an instrument to evidentiary use.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS. History–New 10-31-93, Amended 1-1-97, 7-29-01, 11-5-02, 12-9-04, 3-27-06, ___________.

 

11D-8.007 Approved Breath Test Instruments – Access, Facility Requirements, Observation Period, and Operational Procedures.

(1) Evidentiary breath test instruments shall only be accessible to a person issued a valid permit by the Department and to persons authorized by a permit holder. This section does not prohibit agencies from sending an instrument out of evidentiary use to an authorized repair facility or the Department via common carrier transport. Only authorized repair facilities or the Department are authorized to remove the top cover of an Intoxilyzer 8000 evidentiary breath test instrument.

(2) through (3) No change.

(4) When operating an Intoxilyzer 5000 Series instrument, a breath test operator shall conduct a breath test in accordance with, and shall record the results on, the Breath Test Results Affidavit FDLE/ATP Form 14 – Rev. March 2002. When operating an Intoxilyzer 8000 instrument, a breath test operator shall conduct a breath test in accordance with Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37, revised August 2005, ______________________, hereby incorporated by reference– Rev. August 2005, and the results of the test shall be recorded on the Breath Alcohol Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38, created March 2004, hereby incorporated by reference. Forms FDLE/ATP 37 and FDLE/ATP 38 may be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302. Agencies will be provided blank forms upon request and without cost for their alcohol testing program use.– March 2004.

(5) Each agency shall record all breath tests conducted on a particular Intoxilyzer 5000 Series evidentiary breath test instrument on the Breath Test Log FDLE/ATP Form 13 – Effective January 1997. The breath test log shall be reviewed each calendar month by an agency inspector to ensure that the information is properly recorded and that all necessary corrections are made. The agency inspector’s signature on the breath test log shall signify compliance with this section.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b)2., 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.354(3) FS. History–New 10-31-93, Amended 1-1-97, 7-29-01, 11-5-02, 12-9-04, 3-27-06, _______________.

 

11D-8.0075 Agency Retention of Records.

(1) Each agency shall maintain the following records for at least three years from the last entry date: agency inspection reports and agency inspection print cards, breath test logs, and breath test instrument repair records. The breath test instrument registration shall be retained by an agency for at least three years after the instrument is removed from evidentiary use. Dry gas standard certificates of analysis shall be retained by an agency for at least three years after receipt. These records shall be accessible to the Department upon request.

(2) The above records shall be accessible to the Department upon request. At least once each calendar month each agency shall electronically transmit to the Department all breath tests conducted on that agency’s Intoxilyzer 8000 evidentiary breath test intruments.

(3) No change.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 322.63(3), 327.354(3) FS. History–New 7-29-01, Amended 11-5-02, 12-9-04, ________________.

 

11D-8.008 Breath Test Operator and Agency Inspector.

(1)(a) through (d) No change.

(e) Submit to the Department a complete written application, Breath Test Permit Application, FDLE/ATP Form 8, revised October 2007, ______________________, hereby incorporated by reference, upon successful completion of the breath test operator course, but no later than 90 ninety days after completion. This form may be obtained by contacting the Florida Department of Law Enforcement, P. O. Box 1489, Tallahassee, Florida 32302. Agencies will be provided blank forms upon request and without cost for their alcohol testing program use.

(2)(a) through (b) No change.

(c) Submits to the Department a complete written application, Breath Test Permit Application, FDLE/ATP Form 8, upon successful completion of the agency inspector course, but no later than 90 ninety days after completion.

(d) No change.

(3) Breath Test Operators and Agency Inspectors must satisfy continuing education requirements in orer to maintain valid permits. Continuing education requires successful completion of the applicable Commission-approved Renewal Course by June 30 following the fourth permit anniversay date, and at least once during each subsequent 4-year four-year cycle. Successful completion of the Commission-approved Agency Inspector Course or Agency Inspector Renewal Course also satisfies an Agency Inspector’s breath test operator continuing education requirements.

(4) No change.

(5) Permits to conduct breath tests and inspect breath test instruments issued pursuant to this rule section former Rule 11D-8.008, F.A.C., shall remain valid until such permits expire on December 31st following the mandatory continuing education due date without completion of such training or otherwise become invalid in accordance with those rules.

(6) No change.

(7) Any breath test operator or agency inspector whose permit has expired pursuant to paragraph (5) of this rule section or who fails to successfully complete the Commission-approved renewal course shall not perform any duties authorized by the permit until successful completion of the Commission-approved basic course.

(8) No change.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1934(3), 322.63(3)(b), 327.354(3) FS. History–New 10-31-93, Amended 1-1-97, 7-29-01, 11-5-02, 12-9-04, 3-27-06, ________________.

 

11D-8.010 Qualifications for Instructors.

(1) No change.

(2) Unless exempted by the Commission, at least once every four years 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., in order 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.

(3) No change.

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1934(3), 322.63(3)(b), 327.354(3) FS. History–New 10-31-93, Amended 1-1-97, 7-29-01, 11-5-02, 12-9-04, ______________.

 

11D-8.011 Approval of Blood Alcohol Test Methods.

The Department approves the following test methods for determining blood alcohol level:

(1) Alcohol Dehydrogenase (Enzymatic)

(2) Gas Chromatography

Specific Authority 316.1932(1)(a)2., (f)1., 322.63(3)(a), 327.352(1)(b)3. FS. Law Implemented 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS. History–New 10-31-93, Amended ______________.

 

11D-8.013 Blood Alcohol Permit – Analyst.

(1) The application for a permit to determine the alcohol level of a blood sample shall be made on the Application for Permit to Conduct Blood Alcohol Analyses FDLE/ATP Form 4, revised December 2014, ______________________, hereby incorporated by reference, a form provided by the Department and shall include the following information:

(a) through (e) No change.

(2) No change.

(3)The department shall approve gas chromatographic analytical procedures and enzymatic analytical procedures based on alcohol dehydrogenase which meet the following requirements.

(a) through (f) No change.

(g) An enzymatic analytical procedure based on alcohol dehudrogenase must use the procedure recommended by the instrument manufacturer/test kit vendor for whole blood alcohol analysis, and the enzyme used must have sufficient selectivity to provide negligible cross reactivity towards methanol, acetone amd isopropanol.

(4) The permit shall be issued by the Department for a specific method and procedure. Any substantial change to the method, or analytical procedure, or laboratory facility must receive prior approval by the Department before being used to determine the blood alcohol level of a sample submitted by an agency. The Department shall determine what constitutes a substantial change.

(5) No change.

Specific Authority 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(b), (e), 327.353(2), 327.354(3) FS. History–New 10-31-93, Amended 4-1-94, 2-1-95, 1-1-97, 11-5-02, 12-9-04, ______________.

 

11D-8.017 Forms.

Specific Authority 316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(a), (b), 327.352(1)(b)3. FS. Law Implemented 316.1932(1)(b), 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2)(b), 327.354(3) FS. History–New 10-31-93, Amended 2-1-95, 1-1-97, 7-29-01, 11-5-02, 12-9-04, 3-27-06. Repealed__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Patrick Murphy, Ph.D., ATP Program Manager

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 10, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 21, 2014