Problems with the Intoxilyzer 8000 and Inspections with Unapproved Solutions
In State v. Larking, 23 Fla. L. Weekly Supp. 271b (August 10, 2015), the Honorable Margaret R. Taylor, Judge in Tampa, Hillsborough County, granted a motion filed by Eilam Isaak, Isaak Law, PLLC, Tampa.
The issue in the case was whether the breath test results should be suppressed when the machine was inspected with unapproved solutions. The court found that the administrative rules requires that a minimum of ten bottles from a lot of alcohol reference solution be tested two times yielding twenty test results.
Within that test, all of the results must be within acceptable range for the lot to be approved for use. When use of solution from a lot in which first testing yielded one in twenty results outside of acceptable range and the second testing on the next day yielded forty results all within acceptable range, the requirement that inspectors use only approved solutions was violated.
Although FDLE alcohol testing procedures allows retesting of solution, those procedures are in conflict with and are subordinate to the administrative rules that requires that all results fall within acceptable range.
Therefore, the rules do not permit retesting under these circumstances. As a result, the motion to suppress the breath test results for violation of Florida Statute 316.1932, FDLE Rule 11D-8.0035, and FDLE Rule 11D-8.002(1), from the Intoxilyzer 80000 machine inspected with unapproved solution was granted.
In that case the court found:
THIS CAUSE having come before this court upon the defendant’s filing motions to suppress the breath test results, having heard live testimony on June 8, 2015, having considered exhibits entered into evidence, and having heard arguments of counsel, grants the motions to suppress for the following:
The defense filed identical motions in each case for which all of the testimony, exhibits, and arguments apply equally to both. The only exception is that each defendant’s record includes his own individual breath test affidavit (entered as defense exhibit # 1). For convenience, the remaining documentary exhibits were entered into evidence under the case number for [the defendant].
The State called as it’s witnesses Roger Skipper (the agency inspector for the Hillsborough County Sheriff’s Department), Patrick Murphy (program manager for the alcohol testing program at FDLE), and Dan Richardson (forensic toxicologist from the FDLE crime laboratory).
The defense entered into evidence the following exhibits:
Defense Exhibit # 1 breath test affidavit
Defense Exhibit #2 a 6 page compilation of Intoxilyzer 8000, serial number 80-000833 documents. Pages 1 and 2 are login sheets showing who logged in and entered into password protected areas of the breath machine and on which dates. Page 3 is the instrument processing sheet from FDLE confirming that the breath machine was sent to FDLE and inspected in September 2013. Page 4 is the department inspection results form from the September 2013 FDLE inspection showing that alcohol reference solution lot # 201302B was used during the inspection. Pages 5 and 6 are monthly inspection reporting forms for inspections performed by Roger Skipper for October and November 2013 pursuant to FDLE Rule 11D-8.006 which also show that alcohol reference solution lot # 201302B was used during the inspections.
Defense Exhibit #3 a 10 page compilation of FDLE documents related to the approval of alcohol reference solution 201302B. Including the certificate of assurance, correspondence, and approval testing data by Dan Richardson.
Defense Exhibit #4 a copy of the current FDLE 11D-8 rules (defense counsel on 2 occasions miss-identified this exhibit as #6).
Defense Exhibit #5 a copy of the FDLE alcohol testing procedures manual (2014 version) — [this exhibit was marked but not admitted]
Defense Exhibit #6 a copy of form 39 and form 40
Defense Exhibit #7 a copy of form 36 and form 41
Defense Exhibit #8 a copy of the FDLE alcohol testing procedures manual (2011 version)
The live testimony and exhibits established the following facts: [The Defendant] was arrested for DUI on December 31, 2013. After his arrest, he submitted to a breath test on intoxilyzer 8000, serial number 80-000833. [The second Defendant] was arrested for DUI on November 23, 2013. After his arrest for DUI, he also submitted to a breath test on intoxilyzer 8000, serial number 80-000833.
ROGER SKIPPER TESTIMONY
Mr. Skipper’s testimony established the following facts. He is the Hillsborough County agency inspector and is required to conduct inspections every month on the breath machines pursuant to FDLE Rule 11D-8.006. He is required to follow the procedures set out in form 39 and report the results of his inspections on form 40. Along with other procedures required by form 39, he runs analysis of alcohol reference solutions at pre-determined concentrations of alcohol at 0.05, 0.08, and 0.20 levels. He is only permitted to use alcohol reference solutions which are approved pursuant to FDLE Rule 11D-8.0035. If he uses unapproved solutions, it would be a violation of the applicable administrative rules.
When Mr. Skipper prepares for his inspections, he relies upon information on the FDLE website to verify the approval of the alcohol reference solutions he uses. He identifies them by lot number.
Mr. Skipper tested the intoxilyzer used for both defendants in October, November, and December of 2013. During the October and November 2013 inspections, Mr. Skipper used an 0.05 alcohol reference solution with a lot number of 201302B.
Mr. Skipper testified that during his inspections, he is required to obtain results that are within allowable tolerances at the specified concentrations. If he obtains an out of tolerance result, he is permitted by form 39 to retest one (1) time per concentration. The authority for this retesting is specifically contained within form 39.
DAN RICHARDSON TESTIMONY
Mr. Richardson testified that he has been employed with FDLE for 16 years. The past 13 years as a forensic toxicologist lab analyst in the crime lab section. Mr. Richardson is not part of the alcohol testing program, nor is the crime lab section of FDLE. The alcohol testing program is a separate section.
He was requested to assist the alcohol testing program with the testing of the alcohol reference solutions as a result of the departure from it by it’s former program manager, Laura Barfield in March 2013 because no one was qualified to do the approval testing. Prior to Ms. Barfield’s departure, she was the person responsible for the approval testing of the alcohol reference solutions pursuant to FDLE Rule 11D-8.0035. Once she left, the responsibility for the approval testing fell upon Mr. Richardson. Mr. Richardson was requested by his supervisor to perform the approval testing of the alcohol reference solutions until Ms. Barfield’s replacement for this process could be selected. Mr. Richardson was provided a copy of section 2.14 from the FDLE alcohol testing program procedures manual to guide him as to how to complete the required procedure for the approval testing of the alcohol reference solutions.
Mr. Richardson explained that he tested alcohol reference solution with lot number 201302B on April 16, 2013. He tested 10 bottles in duplicate as required. He obtained 20 results. Mr. Richardson agreed that per FDLE Rule 11D-8.002(1) & FDLE Rule 11D-8.0035, all the results of his analysis were required to fall within 0.0605 g/100mL and 0.0623 g/100mL. Mr. Richardson then testified that one (1) of the results was out of tolerance. Bottle # 1669 on it’s second analysis registered a result of 0.0627. Consequently, Mr. Richardson retested the lot number the following day (April 17, 2013). He again tested 10 bottles in duplicate, and obtained an additional 20 results. This time, all of the results fell within required tolerances.
On cross examination, Mr. Richardson conceded that over the two (2) days, he tested 10 bottles and obtained 40 results. One of which was out of tolerance. He further conceded that not all of his results were within the required tolerance of FDLE Rules 11D-8.002(1) &11D-8.0035.
Mr. Richardson apparently made no attempt to investigate why he obtained an out of tolerance result on the first date of analysis. His explanations were speculation. Mr. Richardson made the decision to retest the lot number on his own without first getting permission from Patrick Murphy. Mr. Richardson testified the procedure he was provided (2.14) permitted him to retest. When confronted with FDLE Rule 11D-8.0035, Mr. Richardson conceded that the rule did not authorize the retesting of the solution, rather the rule required that all of the results fall within allowable tolerances. Mr. Richardson conceded that that did not happen.
When questioned about compliance with the procedures set out in section 2.14 of defense exhibit #5 (the FDLE alcohol procedures manual — the 2014 version), Mr. Richardson agreed that he did not follow them. Based upon his testimony, it became apparent that a different version of the section had been provided to him. At this point, the defense produced an earlier version of the manual from 2011 and was marked and admitted it as defense exhibit #8. Mr. Richardson again agreed that he did not follow the procedures set out in section 2.14 of the 2011 version and again testified that he had a different version. Later in the hearing during the testimony of Patrick Murphy, Mr. Murphy was also shown defense exhibit #8 and confirmed (contrary to Mr. Richardson’s testimony) that this was the procedure that Mr. Richardson had been provided and was required to follow when he tested lot number 201302B.
It was abundantly clear from Mr. Richardson’s testimony that he did not follow the procedures set out in section 2.14 by not complying with the parameters for the gas chromatograph and by failing to determine the cause for the outlier.
PATRICK MURPHY TESTIMONY
Mr. Murphy testified that he has been employed with the alcohol testing program with FDLE for the past 8 years. He has been the program manager for the last 2.
Mr. Murphy outlined his educational experience to include 4 bachelor of sciences degrees, 4 master of sciences degrees, and a PHD. On cross examination, he explained that 1 of his master’s degrees is in forensic toxicology and another masters is in forensic science. He obtained these degrees online without any participation in laboratory work. The remainder of his degrees are non science related.
Mr. Murphy further conceded on cross examination that he personally does not conduct the approval testing of the alcohol reference solutions because he does not feel comfortable performing it. He explained that he does not have the necessary hands on experience required since these solutions are used for evidential purposes.
Mr. Murphy inherited the current FDLE Rules when he took over as the program manager. He is currently in the process of re-promulgating the rules but in March of 2013 (at the time of the approval testing of the alcohol reference solution lot number 201302B), the applicable rules were the current version admitted as defense exhibit #4.
When asked by the defense, he agreed that pursuant to FDLE Rule 11D-8.0035, a minimum of 10 bottles of alcohol reference solution has to be tested in order for a lot number to be approved. More than 10 bottles can be tested but not less. Less than 10 would be a violation of the rule. Each bottle of alcohol reference solution has to be tested in duplicate producing a minimum of 20 results. More than 20 results is ok but less than 20 results would be a violation. He also agreed that the promulgated rule (11D-8.0035) requires all the results fall within allowable tolerances as defined in FDLE Rule 11D-8.002(1).
Mr. Murphy testified that in March of 2013, Mr. Dan Richardson was asked to perform the approval testing of lot #201302B of alcohol reference solution. Mr. Richardson began the testing on April 16, 2013, and retested the solution on April 17, 2013. Mr. Richardson tested 10 bottles in duplicate and because he obtained a result outside of tolerance on April 16th, he retested the 10 bottles the following day. Upon obtaining 20 results on April 17, 2013, Mr. Richardson completed his approval testing of lot #201302B. Based upon the April 17th testing, Mr. Murphy testified that he approved lot #201302B for use in the State of Florida. It is interesting to note that page 3 of defendant’s exhibit #3, a letter dated April 23, 2013, to Mr. Christopher Wilson from Alcohol Counter Measures (the manufacturer of the alcohol reference solution) states that the approval testing performed on April 16, 2013, was the analyses used to approve lot number 201302B (not April 17).
Mr. Murphy further agreed with the testimony of Dan Richardson that bottle #1669 tested outside of tolerance during the April 16th testing procedure. However, he disagreed with him regarding the procedure he was supposed to utilize for the approval testing. According to Mr. Murphy, Mr. Richardson was supposed to use the procedure from section 2.14 of the 2011 version of the FDLE alcohol testing program procedures manual.
Mr. Murphy further testified that the FDLE alcohol testing program procedures manual has never been promulgated as was FDLE Rules 11D-8.002(1), FDLE Rule 11D-8.0035, FDLE Rule 11D-8.006, or forms 36 and 39. Therefore, the failure to follow the sections of the manual is not a violation. However, the failure to follow the other formally promulgated rules would be.
Mr. Murphy when asked about FDLE Rule 11D-8.0035 agreed with the defense that it states that “all analyses shall fall within alcohol reference solution acceptable range”. He further testified that for lot # 201302B, that 10 bottles were tested yielding a total of 40 results, for which not all of the results fell within acceptable range as defined by FDLE Rule 11D-8.002(1).
Mr. Murphy was also questioned about FDLE Rule 11D-8.004 and form 36. Similar to FDLE Rule 11D-8.006 and form 39, he testified that the promulgated rule and form specifically state that if an out of tolerance result is obtained during the department inspection, a second analysis is permitted. And when asked about a comparison with FDLE Rule 11D-8.0035, he conceded that the rule does not permit reanalysis for an out of tolerance result for the alcohol reference solution testing. The only source for that procedure is the unpromulgated procedure in section 2.14 of the FDLE alcohol testing program procedures manual.
The defense questioned Mr. Murphy about a September 2013 department inspection that had been performed on the breath machine in these cases. Mr. Murphy acknowledged that lot number 201302B was used during that inspection and that the September department inspection was required by rule to place the breath machine back into evidential use.
Mr. Murphy next testified about the FDLE website and that there is a substantial number of documents on the site. The defense suggested in excess of 1 million but Mr. Murphy felt that 500,000 would be a better estimate. Mr. Murphy shouldered the responsibility of not telling the State Attorney’s office or the Hillsborough County Sheriff’s Department about the out of tolerance result for lot number 201302B. He agreed that he never sent out a Brady notice to either the agency inspectors or the State Attorney’s office because he felt that the lot number was properly approved and that there was no need to advise them of such.
The defense is asking this court to suppress the breath test results because unapproved alcohol reference solutions were used in both the September 2013 department inspection as well as the monthly agency inspections. The State argues in the opposite and asks this court to find that FDLE properly approved lot number 201302B. For the following reasons the motion is granted.
FDLE Rule 11D-8.004 requires a department inspector to follow form 36 and FDLE Rule 11D-8.006 requires an agency inspector to follow form 39. Both of these forms state that only approved alcohol reference solutions may be used during the inspection process. Using non-approved solutions would be a violation. State of Florida v. Booth, Case No: 00-1974 (13th Cir. 2002), State v. Waters, Case No: 418211W (13th Cir. 2000).
In order to approve a lot number of alcohol reference solution, FDLE must comply with FDLE Rule 11D-8.0035. The rule requires a minimum of 10 bottles be tested in duplicate producing at least 20 results, all of which must be with acceptable range as defined by FDLE Rule 11D-8.002(1).
The evidence in this case establishes that FDLE performed it’s first analysis on lot number 201302B on April 16, 2013. It tested 10 bottles. That was compliant with FDLE Rule 11D-8.0035. It also tested it in duplicate, and that was also compliant with FDLE Rule 11D8.0035. But when one (1) result tested outside of acceptable range (bottle 1669 with a result of 0.0627), lot number 201302B was in non-compliance.
Since the promulgated rule (11D-8.0035) requires that all results fall within acceptable range as defined by FDLE Rule 11D-8.002(1), and not all of the results were within the acceptable range, FDLE should not have retested the solution. Even though the procedure in section 2.14 of the FDLE alcohol testing program procedures manual permits retesting, since the promulgated rule apparently does not, FDLE was precluded from reanalyzing it.
The State argues that FDLE was permitted to reanalyze the solution per the FDLE alcohol testing program procedures manual, the defense on the other hand argues that the promulgated rule (11d-8.0035) prohibits re-analysis. The issue is resolved by the FDLE procedures manual. On page 2 of the FDLE alcohol testing program manual, it states that the purpose of the manual “is to document the procedures of the Florida Department of Law Enforcement alcohol testing program. It is not intended to supersede, and when in conflict, is subordinate to, information and processes in the Florida Statutes, Florida Administrative Code, or FDLE policies and procedures”. Since FDLE Rule 11D-8.0035 requires all results to fall within acceptable range, this court finds that the promulgated rule and section 2.14 of the FDLE alcohol testing program procedures manual to be in conflict and therefore section 2.14 is subordinate to the promulgated rule (11D-8.0035) and therefore, retesting is not permitted since 11D-8.0035 requires all of the results must fall within acceptable range.
This court finds that based upon the testing completed on lot number 201302B, that 10 bottles were tested in duplicate on two (2) separate days, yielding a total of 40 results for which not all of the results fell within acceptable range. Therefore, lot number 201302B was not properly approved in accord with FDLE Rule 11D-8.0035 and the use of these non-approved solutions during the September department inspection or the monthly agency inspections in October and November violated forms 36 and 39, thereby rendering the results inadmissible.
In support of their positions, the defense provided this court with two (2) cases. State v. Booth, Case No: 00-1974 (13th Cir. 2002), State v. Waters, Case No: 418211W (13th Cir 2000). The trial court in Waters suppressed the breath test results for violation of FDLE Rule 11D-8.0035 when one (1) result for the alcohol reference solution fell outside of acceptable range during the approval process. State v. Waters, Case No: 418211W (13th Cir 2000). The court examined the language of the rule and determined that it did not permit FDLE to discard an outlier result. Id. The court found that all of the results of the analysis had to be considered. Id. The language of the version of the rule at issue in Waters is identical to the language of the current version of the rule at issue in these cases also. Therefore, this court finds that FDLE was not permitted to discard the outlier result for lot number 201302B. Id.
The decision in Waters was adopted by another trial court in Booth and then subjected to an appeal by the State to the circuit court. State of Florida v. Booth, Case No: 00-1974 (13th Cir 2002). In it’s appellate capacity, the 13th circuit court affirmed the decision finding that a violation of FDLE Rule 11D-8.0035 occurred. Id. A decision of the Circuit court acting in it’s appellate capacity is binding on all courts within that circuit. Fieselman v. State, 566 So.2d 768 (Fla. 1990), State v. Lopez, 633 So.2d 1150 (5th DCA 1994).
Therefore, this court finds that it is required to follow Booth. Fieselman v. State, 566 So.2d 768 (Fla. 1990), State v. Lopez, 633 So.2d 1150 (5th DCA 1994).
Since the State made no argument for substantial compliance, this court need not make any ultimate legal findings on this point of law. But, since the State is seeking further appellate review, it should be noted that the court in Waters as well as Booth found that the doctrine of substantial compliance did not apply to FDLE or rule 11D-8.0035. Had the State argued this point during the hearing, the court would have rejected the State’s position consistent with Waters and Booth. Id.
As for the defenses argument regarding the alleged Brady violation. This argument is obviously a reference to Brady v. Maryland, 373 U.S. 83 (1963). In order to prove a Brady violation, the defense has the burden to show that (1) favorable evidence either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) that because the evidence was material, the defendant was prejudiced. Beasley v. State, 18 So.3d 473 (Fla. 2009) [34 Fla. L. Weekly S439a] — see concurring opinion. And even though the court feels that a Brady violation probably occurred in this case, by granting the motion to suppress for violating FDLE Rule 11D-8.0035, the court does not have to go any further on this issue as it has been rendered moot.
For these reasons, the court grants the motion to suppress the breath test results.
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