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Permits

Agency Inspector Permits

In a breath test case, the criminal defense attorney's goal is to get the breath test result excluded from the DUI trial. One issue that arises in these cases is whether the agency inspector and breath test operator have a valid permit at the time of the last inspection or when the breath test is administered.

When the rules in Florida for the Intoxilyzer 8000 are not followed, the criminal defense attorney can file a motion to suppress or exclude the breath test results.

In Florida, it can be argued that the Agency Inspector who inspects and maintains the Intoxilizer 8000 machines does not hold a valid inspector's permit. Criminal defense attorneys have objected to the validity of the permit because the certification is not valid when it is issued by an agency without authority to do so.


Motion to Suppress or Exclude Because of an Invalid Permit

Whether the agency inspector has a valid agency certification is a question of law for the Court. In Dep't of Highway Safety and Motor Vehicles v. Stevens, 820 So. 2d 322, 323 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2565b], the court found that whether the agency inspector had a valid agency inspector permit was a question of law, not of fact. As such, the circuit court's decision was based on its interpretation of the applicable rule, not the weight of the evidence.

The “Implied Consent Program” Statutes provide greater protection than the state or federal Constitution in the collection of breath, blood or urine samples. Under some circumstances, it allows for the warrantless collection of blood, breath or urine by implied consent.

However, if the statute is not complied with, the results are inadmissible. This Court looks at the delegation of legislative authority to the Department of Law Enforcement and the rules implemented thereto to determine whether there was compliance with them.

According to interpretations by the FDLE ATP, the “Permit Cycle” definition in 11D-8.002(26) controls all Breath Test Operators (BTOs), Agency Inspectors (AIs), AND Breath Test Instructors (BTIs). BTIs need to be mindful that their ATMS BTI topic certification retraining date does not always match their BTI permit retraining date. ATMS has recently updated the system to indicate both the BTI certification (CJSTC approved topic) AND BTI permit (ATP) mandatory retraining dates.


History of Permits for Breath Test Operators and Agency Inspectors

Originally, the rules for breath test operators and inspectors were controlled by Health and Rehabilitative Services (HRS) under Ch. 10D-42.025, 10D-42.026, and 10D-42.027 (A. 9-11, 20-22).

The Florida legislature repealed the portion of the law that provided HRS with the power to promulgate rules when it amended Section 316.1932 in 1993. That amendment transferred the responsibility to the Department of Law Enforcement which first promulgated rules in 1993. The iteration of Rule 11D-8.008, F.A.C., set out the rules for the issuance of breath test technician permits.

Under the 1993 rules, the Department of Law Enforcement included a savings clause to allow breath test technicians to continue to use their permits issued under the HRS rules.

In 1997, the Transition Clause was repealed and the rules were amended. In 1997, the Department of Law Enforcement eliminated “breath test technicians” and separated the breath test operator permit and agency inspector permit into two (2) distinct permits.

Under the new rules, the breath test operators continued to maintain their breath test inspector certification as offered by the alcohol testing program within the Department of Law Enforcement.


Responsibilities of Florida's Alcohol Testing Program

The rules clearly require that the Alcohol Testing Program, not the Criminal Justice Standards and Training Commission (CJSTC), is solely authorized to issue the administrative rules regulating breath inspectors' permits.

Section 316.1932(2), Florida Statutes (2016), provides:

"The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of . . . the individuals who operate, inspect, and instruct on the breath test instruments . . . ."

In Florida, there is no statutory definition of the "Alcohol Testing Program."


Provisions for the Alcohol Testing Program in Florida

The Florida legislature mentions an Alcohol Testing Program in three places including Section 322.63, Section 316.1932, and Seciton 327.352. Section 322.63 relates to commercial motor vehicle drivers.

Section 943.043(6)(b), Fla. Stat. references the Alcohol Testing Program and specifically provide that the Department of Law Enforcement is authorized to “Consult and cooperate with other entities for the purpose of implementing the mandates of [section 322.63(3)(b), Fla. Stat., which relates to the alcohol testing program as to commercial vehicles].”

Section 322.63(3)(b) ends with the legislative directive that “Nothing in this section shall be construed to supersede provisions in this chapter and chapters 316 and 327. The specifications in this section are derived from the power and authority previously and currently possessed by the Department of Law Enforcement and are enumerated to conform with the mandates of chapter 99-379, Laws of Florida.”


FDLE's Criminal Justice Standards and Training Commission

In keeping with this directive, the Department of Law Enforcement has also promulgated rules codified in Ch. 11-D of the F.A.C. Specifically, 11D-8.010 Qualifications for Instructors, provides:

"There is created a Criminal Justice Standards and Training Commission within the [Florida] Department of Law Enforcement." (emphasis added.)

Section 943.12(5) provides that the Commission shall "[e]stablish uniform minimum training standards for the training of officers in the various criminal justice disciplines." The Florida Department of Law Enforcement (FDLE) operates the Alcohol Testing Program within its CJTC.

In other words, the Florida legislature required that FDLE regulate breath tests inspectors within its Alcohol Testing Program. Instead, FDLE placed the responsibilities of the Alcohol Training Program within its CJTC.

Some courts have found that Section 316.1932(2)'s grant of rulemaking authority to regulate breath test operators and inspectors within the FDLE be construed together with Section 943.12(5)'s grant of authority to the Criminal Justice Standards and Training Commission within the FDLE to establish training standards for law enforcement.

For this reason, some courts have found that FDLE was acting within the scope of its legislative grant of rulemaking authority when it adopted the relevant rules regulating breath test inspectors.


This article was last updated on Friday, August 31, 2018.