Florida Breath and Blood Alcohol

Testing Update

Ann Marie Johnson, Assistant General Counsel and Troop Legal Advisor

Florida Department of Highway Safety and Motor Vehicles/FHP

Danielle Bell, Department Inspector

Florida Department of Law Enforcement Alcohol Testing Program

Crash- February 12, 2010- before 1 a.m.◦ Defendant t-boned 23 yr. old Scott Wilson flipping

Wilson’s car into a canal where Wilson drowned◦ Def. walked away from crash scene to “find help”

claiming his cellphone was dead◦ Claims he found a barn with a “man cave” and

drank there to ease the pain of a broken arm Def. had been at a charity event all evening◦ First trial in 2012 where def. claimed his Bentley

malfunctioned resulted in a conviction!◦ Verdict in 2012 overturned due to juror misconduct

issue

Def. walked to nearby trailer arriving ½ hour after crash

Waited another 25 minutes after arriving at trailer to call his girlfriend before calling 911

Claimed after drinking at man cave in barn that he jumped a fence to get to trailer (with a broken arm)

Claimed that it was possible the nurse at hospital used a 25 gauge butterfly needle

25 gauge butterfly needle can cause hemolysis (rupturing of red blood cells) and claimed this elevated the defendant’s blood alcohol level◦ BAC was .177/ .178 hours after the crash, retrograde to

.207/ .237 Challenged the FDLE rules as insufficient to

ensure accurate BAC results This issue deferred to DOAH since it was an

attack on FDLE rules

March 2014- Criminal court deferred blood issue to DOAH

April 2014- Petition filed in DOAH

June 2014- 3 day hearing in DOAH

July 10, 2014- Proposed orders submitted

July 30, 2014- DOAH found FDLE rules sufficient to ensure accurate BAC results and FDLE is not required to dictate needle gauge, type of needle used, or dictate policy regarding labs screening for clots

08/28/14 Appeal of DOAH order filed 11/09/15 Oral arguments 05/25/16 Affirmed the lower court decision 06/28/16 Motion for rehearing 08/24/16 Rehearing denied but certified 2

questions to the Florida Supreme Court

1. Were current FDLE rules inadequate, under Miles, for failing to regulate blood draw procedures and failing to regulate the homogenization process to cure a clotted blood samples?

2. Were current FDLE rules inadequate for failing to regulate blood analysts in screening blood samples, documenting irregularities, and rejecting unfit sample?

09/22/16 Filed 08/30/17 Oral arguments 02/01/18 Opinion affirming lower court 03/02/18 Goodman filed Motion stating he

would seek no further post conviction motions!!!!!!!!!!!!!!!!

Goodman fails to grasp the relationship between the ALJ’s two findings on clotting. the ALJ correctly found that not all clotted blood samples present reliability issues.

Accordingly, we conclude that Rule 11D-8.012 facially ensures reliable blood test results and any question as to the accuracy of a particular test is best determined on a case-by-case basis.

Goodman’s argument fails because blood analysts already screen, document, and reject unfit samples as an implicit and incidental part of headspace GC testing.

And—without more—Goodman’s position leaves him tilting at windmills. Goodman’s position is “an overbroad solution in search of a problem”

“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.

ATP is moving toward ANAB Accreditation◦ What is ANAB and Why? Similar to CALEA and ASCLD-LAB 3rd party accreditation for forensics agencies ATP is considered a Breath Alcohol Calibration Laboratory

◦ What does that mean for LE community? Everything we do now has to meet standards as required by

ANAB We were already doing most of it, but now the processes and

policies are documented more thoroughly. Once accredited, WE (and you) can say a 3rd party agrees our

policies and procedures meet their requirements for sound scientific practices.

What do they mean and why do we have them?◦ Form 41 (ATP’s Department Inspection report) is set

in formatting by Rule 11D-8.◦ ANAB requires that Calibration results be

accompanied by “uncertainty of measurement.”◦ A form / report was created to meet this ANAB

standard.◦ Does NOT affect the Department Inspection or

change the information contained on the report.

The values listed simply explain that the values found on a Department Inspection will fall within a set range 99% of the time.

Essentially, the instrument will read, in this case, a sample of 0.05 g/ 210 L accurately during a Department Inspection to within ±0.004.

Based on all inspections during the previous calendar year

New communication options- ethernet and USB port for printer

Only change in the software is to accommodate new hardware.

Every instrument will need the new software regardless of whether or not you opt for the ethernet and USB port.

All instruments will need to be sent to ATP for a software change and subsequent department inspection.

Coming January 2018 (hopefully)

In beginning stages 1st step- Request for Information on all

available breath alcohol testing devices Lengthy evaluation process Seeking funding to pay for replacing

approximately 500 instruments statewide Rule change to accommodate new instrument

= about 18 month process New Curriculum and retraining of BTOs, AIs,

and Instructors Department Inspection and Registration of all

replacement instruments

Alcohol Reference Solution Approval Issues◦ ARS lot testing was not within tolerance range 1 of 20 samples fell outside tolerance for unknown

reasons ARS lot was re-tested, all results within tolerance◦ ½ of the Courts ruled that Rules didn’t provide for

retesting of the lot Rule change in 2016 (11D-8.0035 (2)(a))◦ If any of 20 results fall outside range then retest. If

any fall outside range a 2nd time then ATP rejects entire lot.

Deionized water◦ Defense claiming that per the ATP Procedures

Manual, ATP should be testing the deionized water used in testing Alcohol Reference Solutions◦ ATP uses deionized water as blanks in the ARS

testing process so it is being tested◦ No administrative rule requiring that ATP

Procedures Manual be followed

Defense also challenging the Procedures Manual that it needs to be promulgated in F.A.C.◦ Internal memoranda is specifically exempt from rule

making per F.S. 120.52(16)(a).

Measurement Uncertainty Instrument Operational/ Condition Messages◦ Know what they are◦ Know what to do to resolve the operation or

condition◦ Document, Document, Document!!!!

Jake ShanahanAlachua, Baker, Bradford, Citrus, Clay, Columbia, Dixie, Duval, Flagler, Gilchrist, Hamilton, Lafayette, Levy, Marion, Nassau, Orange, Putnam, Seminole,St. Johns, Suwannee, Union

Danielle BellHernando, Hillsborough, Lake, Osceola, Pasco, Pinellas, Polk, Sumter

Shayla PlattBrevard, Charlotte, DeSoto, Glades, Hardee, Hendry, Highlands, Lee, Manatee, Martin, Okeechobee, Palm Beach, Sarasota, St. Lucie

Patrick MurphyBay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson, Jefferson, Leon, Liberty, Madison, Okaloosa, Santa Rosa, Taylor, Volusia, Wakulla, Walton, Washington

David ReyesBroward, Collier, Miami-Dade, Indian River, Monroe

Alcohol Testing Program Staff

Brett Kirkland, Ph.D.Program ManagerP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1275Cell: (850) 631-1351Fax: (850) 921-3787Email: BrettKirkland@fdle.state.fl.us

Thomas "T.J." GrahamQuality Assurance ManagerP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1285Cell: (850) 445-7938Fax: (850) 921-3787Email: ThomasGraham@fdle.state.fl.us

Dorothy SmithAssistant General CounselP.O. Box 1489Tallahassee, FL 32302Office: (850) 410-7676Cell: (850) 544-9860Fax: (850) 921-3787Email: DorothySmith@fdle.state.fl.us

VACANTCustomer Service SpecialistP.O. Box 1489Tallahassee, FL 32302Phone: (850) 617-1278Fax: (850) 921-3787

Barbara Lawson-ColstonAssistant to Program ManagerP.O. Box 1489Tallahassee, FL 32302Phone: (850) 617-1290Phone 2: (850) 617-1277Fax: (850) 921-3787Email: barbaralawson-colston@fdle.state.fl.us

VACANTSenior Clerk (OPS)P.O. Box 1489Tallahassee, FL 32302Phone: (850) 617-1287Fax: (850) 921-3787

Danielle Bell (previously Miller)Department InspectorP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1286Cell: (850) 274-2757Fax: (850) 921-3787Email: DanielleBell@fdle.state.fl.us

Patrick Murphy, Ph.D.Department InspectorP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1280Cell: (850) 274-1338Fax: (850) 921-3787Email: PatrickMurphy@fdle.state.fl.us

Shayla PlattDepartment InspectorP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1282Cell: (850) 728-4200Fax: (850) 921-3787Email: ShaylaPlatt@fdle.state.fl.us

Jake ShanahanDepartment InspectorP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1288Cell: (850) 445-7242Fax: (850) 921-3787Email: JakeShanahan@fdle.state.fl.us

David ReyesDepartment InspectorP.O. Box 1489Tallahassee, FL 32302Office: (239) 278-7080 ex. 239Cell: (850) 728-7022Fax: (239) 278-7105Email: DavidReyes@fdle.state.fl.us