IPTM May 2018 Breath and Blood Alcohol Testing Update revised · Florida Breath and Blood Alcohol...
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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
Transcript of IPTM May 2018 Breath and Blood Alcohol Testing Update revised · Florida Breath and Blood Alcohol...
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: [email protected]
Thomas "T.J." GrahamQuality Assurance ManagerP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1285Cell: (850) 445-7938Fax: (850) 921-3787Email: [email protected]
Dorothy SmithAssistant General CounselP.O. Box 1489Tallahassee, FL 32302Office: (850) 410-7676Cell: (850) 544-9860Fax: (850) 921-3787Email: [email protected]
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: [email protected]
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: [email protected]
Patrick Murphy, Ph.D.Department InspectorP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1280Cell: (850) 274-1338Fax: (850) 921-3787Email: [email protected]
Shayla PlattDepartment InspectorP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1282Cell: (850) 728-4200Fax: (850) 921-3787Email: [email protected]
Jake ShanahanDepartment InspectorP.O. Box 1489Tallahassee, FL 32302Office: (850) 617-1288Cell: (850) 445-7242Fax: (850) 921-3787Email: [email protected]
David ReyesDepartment InspectorP.O. Box 1489Tallahassee, FL 32302Office: (239) 278-7080 ex. 239Cell: (850) 728-7022Fax: (239) 278-7105Email: [email protected]
