3 Fla. L. Weekly Supp. 740a

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1 3 Fla. L. Weekly Supp. 740a Criminal law -- Driving under influence -- Evidence -- Breath test results -- Claim that Florida Department of Law Enforcement procedures for validating reliability of breath testing machines are scientifically inadequate and unreliable is without merit -- Uncontroverted testimony established that procedures detailed by FDLE rules are stringently followed by FDLE, local breath test maintenance technicians, and breath test technicians who administer breath tests on daily basis -- Intoxilyzer 5000 series breath testing machine used by sheriff's office was approved machine, and results obtained from use of machine are approved for the purpose of determining alcoholic content -- Defendants who refused to submit to breath test may not seek to exclude evidence of their refusal on basis that the refused test lacked accuracy or precision STATE OF FLORIDA v. STEVEN REESE PHILLIPS, and ALFRED E. FONG, LAWRENCE J. FLYNN, ERIC E. FORD, JOHN K. WOOD, DARWIN T. WARREN, SANJIV G. HINGORANI, DARRYL WILLIAM ZWAK, BARBARA B. ZALA, MORRIS J. FONTE, JR., CATHLEEN M. ZUKOSKI, ROBERT J. HICKS, CATHY B. HALL, ELAINE F. FERNANDEZ, and KENNETH G. HOWLE, III. County Court of the 13th Judicial Circuit in and for Hillsborough County. Criminal Justice Division. Case Nos X, X, X; M, X, X, X; Q, X; Q, X; /90-P, X, X, X, X, X; Q, X, and X. April 1, Gregory P. Holder, Judge. Counsel: Barry K. Taracks and N. Christian Brown, for Defendant. ORDER ON DEFENDANT'S MOTION TO SUPPRESS THIS CAUSE having come to be heard on the Defendants' 1 Motions to Suppress (the ``Motion''). This Court having reviewed the court file, heard argument of counsel, as well as having reviewed the research materials provided by counsel for the State as well as the Defendant, finds as follows: On May 13, 1994, Defendant, Steven R. Phillips, was stopped by law enforcement officers, for erratic driving. After subsequent investigation and arrest, the Defendant submitted to a breathalcohol analysis, conducted by the Central Breath Testing Unit of the Hillsborough County Sheriff's Office (``HCSO''). Based upon the results of this testing, the Defendant was charged with DUI in violation of , Florida Statutes (1993). The Defendant has stipulated within the Motion that the maintenance and verification of the Intoxilyzer 5000 breath testing machine, if conducted, was conducted in accordance with F.A.C. Chapter 11D-8. In his Motion to Suppress, the Defendant contends that the breath-testing protocol utilized by HCSO is unreliable, in that the Florida Department of Law Enforcement (``FDLE'') procedures for validating reliability are scientifically inadequate and unreliable. Rule Fla.R.Cr.P. provides for only two types of Motions to Suppress: (1) Motion to Suppress Evidence in Unlawful Search [Rule 3.190(h) Fl.R.Cr.P.]; and, (2) Motion to Suppress a

2 Confession or Admission Illegally Obtained [Rule 3.190(i) Fla.R.Cr.P.]. Since the Defendant has failed to allege or present evidence to support such a Motion, this Court will treat the Defendant's Motion as a Motion in Limine. STATUTORY PROVISION, ADMINISTRATIVE RULES AND AGENCY PROCEDURES 2 Pursuant to (1)(b)(2), Florida Statutes (1993), FDLE is charged with the responsibility for promulgating rules governing breath testing in the State of Florida (1)(a), Florida Statutes (1993) provides in relevant part: Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall by so operating such vehicle, be deemed to have given consent to submit to an approved chemical test or physical test including but not limited to an infrared light test of his breath for the purpose of determining the alcoholic content of his blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s or controlled substances, if he is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. Moreover, (1)(b)(2), Florida Statutes (1993) provides: An analysis of a person's breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement. For this purpose, the department is authorized to approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case does not render the test or test results invalid. [emphasis added]. Further, (1)(f)(1), Florida Statutes (1993) provides in pertinent part: The tests determining the weight of alcohol in the defendant's blood or breath shall be administered at the request of a law enforcement officer substantially in accordance with the rules and regulations that have been adopted by the Department of Law Enforcement. Such rules and regulations shall be adopted after public hearing, shall specify precisely the test or tests that are approved by the Department of Law Enforcement for reliability of result and facility of administration, which shall be followed in all such tests given under this section. [emphasis added]. After the breath test results are obtained, (2), Florida Statutes (1993), provides in relevant part: Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages or controlled substances, when affected the extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his

3 normal faculties, the results of any test administered in accordance with s or s and this section shall be admissible into evidence when otherwise admissible,.... S (3) provides as follows: A chemical analysis of a person's blood to determine alcoholic content or a chemical or physical test of a person's breath, in order to be considered valid under this section, must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. Any insubstantial differences between approved techniques and actual testing procedures or any insubstantial defects concerning the permit issued by the department, in any individual case do not render the test or test results invalid. The Department of Law Enforcement may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits that are subject to termination or revocation in accordance with rules adopted by the department. [emphasis added]. Under the provisions of Chapter 316, Florida Statutes (1993), FDLE promulgated Florida Administrative Code (``F.A.C.'') Chapter 11D-8, Implied Consent Program (the ``Rule''). The Rule was effective October 31, This Court has taken judicial notice of the Rule for the purposes of this Motion. Under the provisions of F.A.C. Rule 11D-8.002(6), all breath test instruments utilized in Florida must be approved by FDLE. According to F.A.C. Rule 11D (2), the C.M.I., Inc. Intoxilyzer 5000 Series breath test instrument is an approved breath test instrument for evidential use. Moreover, under the provisions of F.A.C. Rule 11D-8.003(7): When conducting an evaluation for approval of breath test instruments in accordance with this rule, the Department shall make the following checks for accuracy, precision, and alcohol-free reading in accordance with the Department and Agency Inspection Procedures FDLE/ICP Form October, (a) Accuracy -- Simulator tests will be completed for each test instrument using vapor mixtures containing alcohol at concentrations of g/210l, g/210l, g/210l and g/210l. A minimum of 50 tests will be completed at each concentration. 1. The average error at each concentration is calculated for each test instrument. The average error is calculated by first calculating the average of the 50 measurements at each concentration. The difference between the average value at each concentration and the true value at each concentration is then calculated. This calculated difference is the average error. 2. The accuracy standard for each test instrument shall measure the alcohol content of vapor mixtures with an average error of no more than ± 5% or ±.005 g/210l, whichever is greater. (b) 1. Precision -- Using the same 50 tests completed for subsection (7)(a), the standard deviation at each concentration is calculated for each test instrument. The average standard deviation of the four concentrations is then calculated.

4 2. The precision standard for each test instrument shall measure the alcohol content of vapor mixtures with an average standard deviation of no more than g/210l. (c) Alcohol-Free Solution -- Simulator tests will be completed for each test instrument using an alcohol-free vapor mixture. A minimum of 25 tests will be completed. The alcohol-free solution standard for each test instrument requires that no reading be more than g/210l. F.A.C. Rule 11D requires that all breath test instruments, prior to being placed into evidentiary use, be inspected for accuracy, precision, and alcohol-free reading in accordance with the Department and Agency Inspection Procedures FDLE/ICP Form October, F.A.C. Rule 11D states in pertinent part: (1) Accuracy -- Simulator tests will be completed for each test instrument using vapor mixtures containing alcohol at concentrations of g/210l, g/210l, and g/210l. A minimum of 10 tests will be completed at each concentration. (a) The average error at each concentration is calculated for each test instrument. The average error is calculated by first calculating the average of the 10 measurements at each concentration. The difference between the average value at each concentration and the true value at each concentration is then calculated. This calculated difference is the average error. The accuracy standard for the instrument shall measure the alcohol content of vapor mixtures with an average error of no more than ± 5% or ±.005 g/210l, whichever is greater. (2)(a) Precision -- Using the same 10 tests completed for subsection (1)(a), the standard deviation at each concentration is calculated for the instrument. The average standard deviation of the three concentrations is then calculated. (b) The precision standard for the instrument shall measure the alcohol content of vapor mixtures with an average standard deviation of no more than g/210l. (3) Alcohol-Free Solution -- Simulator tests will be completed for each test instrument using an alcohol-free vapor mixture. A minimum of 10 tests will be completed. The alcohol-free solution standard for each test instrument requires that no reading be more than g/210l. F.A.C. Rule 11D requires that breath test instruments be inspected by the Department at least once each calendar year for accuracy and alcohol-free reading in accordance with the Department and Agency Inspection Procedures FDLE/ICP Form October F.A.C. Rule 11D8.005(1) states in pertinent part: (a) Accuracy -- Simulator tests will be completed for each test instrument using vapor mixtures containing alcohol at concentrations of g/210l, g/210l, and g/210l. A minimum of 5 tests will be completed at each concentration. The observed values must fall within the following ranges at each concentration: g/210l Acceptable range: g/210l, g/210l Acceptable range: g/210l, g/210l Acceptable range: g/210l.

5 (b) Alcohol-Free Solution -- Simulator tests will be completed for each test instrument using an alcohol-free vapor mixture. A minimum of 5 tests will be completed. The alcohol-free solution standard for each test instrument requires that no reading be more than g/210l.... Monthly inspection and testing of each breath test instrument is mandated by F.A.C. Rule 11D in order to confirm the accuracy and alcohol-free reading of each instrument. F.A.C. Rule 11D-8.006(1) states in pertinent part: (a) Accuracy -- Simulator tests will be completed for each test instrument using vapor mixtures containing alcohol at concentrations of g/210l, g/210l, and g/210l. A minimum of 3 tests will be completed at each concentration. The observed values must fall within the following ranges at each concentration: g/210l Acceptable range: g/210l, g/210l Acceptable range: g/210l, g/210l Acceptable range: g/210l. (b) Alcohol-Free Solution -- Simulator tests will be completed for each test instrument using an alcohol-free vapor mixture. A minimum of 3 tests will be completed. The alcohol-free solution standard for each test instrument requires that no reading be more than g/210l.... FDLE/ICP Form October, 1993, sets forth the Inspection Procedures for the Intoxilyzer 5000 Series. Step (2) requires that the Department or technician ``Mix simulator solution'' which is then tested at the various concentrations contained within the Rule. In December 1994, FDLE issued recommended guidelines for inspections pursuant to F.A.C. Rule 11D requiring the technician perform additional tests to identify the source of any out of range readings. Moreover, if the technician cannot identify the cause of the out of range reading, or if it is suspected that the instrument is the cause, the technician must indicate that the instrument fails to comply with the agency inspection standards and remove the instrument from service. CHALLENGING THE ADEQUACY AND RELIABILITY OF THE BREATH TEST INSTRUMENT MAINTENANCE AND CERTIFICATION PROTOCOLS The Defendant, within the Motion, contends that the maintenance protocol used for breath-test alcohol testing is unreliable, because the simulated tests are conducted without verifiable alcohol concentrations. The specific alleged weaknesses contained within the Defendant's Memorandum of Law in Support of Defendant's Motion to Suppress, are as follows: (1) The test solutions are diluted from a stock solution which is prepared at the FDLE labs. The stock solution is tested on a gas chromatograph to verify its concentration. However, this test is performed only one time, by a single operator. Thus, if an error in testing occurred, this error would not be detected under the current system. (2) The field technicians who perform the actual tests of Intoxilyzer machines do not know the actual concentration of the stock solution as determined by gas chromatography, because it is not printed on the bottle. Thus, the field technicians are preparing simulator solutions by diluting from a stock solution of unknown value.

6 (3) The field technicians prepare the simulator solutions by manually diluting the stock solution in distilled water. There is no requirement for another technician to monitor this process. Thus, if the field technician were to make an error, this error would not be detected under the current system. (4) The field technicians have no means by which to test the concentration of their simulator solutions. Thus, they must assume that the FDLE-provided stock sample is at the correct concentration, and that they made no mistakes in diluting it. (5) Finally, the technicians dispose of the simulator solutions after performing the tests. Thus, it is not possible for a defendant to conduct an independent analysis of those solutions, to determine whether their actual values matched their assumed values. DEFENSE TESTIMONY Dr. Richard Jensen, PhD., an analytical chemist and forensic toxicologist testified for the defense. Dr. Jensen testified that he has over 16 years experience with the science of evidential breath test devices both in academia and within the field of law enforcement. After receiving sworn testimony, Dr. Jensen was accepted by this Court as an expert in the fields of analytical chemistry, toxicology, and evidentiary breath testing devices. Dr. Jensen testified that the protocol setting forth the testing of breath test instruments as set forth within F.A.C. Chapter 11D-8 does not allow accuracy as required by applicable scientific principles. More specifically, he testified that, according to information he has received, he believes that FDLE (Mr. Thomas Wood) prepares approximately 24L of stock solution which is then homogeneously mixed and then divided into smaller bottles of approximately three ounces each. Mr. Wood then takes 10 of the smaller bottles which are then diluted and then analyzed by gas chromatography. Dr. Jensen stated that the stock solution received by the technician in the field is never measured [T-Jensen; P-32]. Once in the field, the field breath instrument test technician makes dilutions of the stock solution by taking aliquots or precisely measured portions of that and dilutes that to 500 milliliters to prepare concentrations of simulated breath alcohol in the areas of.05 to.10 to.20 [T-Jensen, P- 33]. Because the small bottle from which the aliquot portion is taken has not been analyzed, one must assume that the field technician is capable of conducting the ten milliliter dilution in exactly the same manner and form, with the same proficiency as Mr. Wood has done in his laboratory [T-Jensen, P-34, 35]. In Dr. Jensen's opinion, it is impossible to establish the concentration of the simulator vapor in order to apply the standards the state has set for the approval of the recertification process [T-Jensen, P-41]. Dr. Jensen recommended the use of pre-mix simulator solutions which would be analyzed by gas chromatograph by more than one FDLE laboratory prior to distribution to the field. It was Dr. Jensen's testimony that the Intoxilyzer 5000 was an acceptable evidential testing device when used properly [T-Jensen, P-54, 55]. WITNESSES FOR THE STATE

7 Mr. Thomas M. Wood, Senior Crime Laboratory Analyst for the Implied Consent Program, FDLE, testified for the state. Mr. Wood served as a drug chemist with the Tallahassee Crime Lab portion of FDLE until joining the Implied Consent Program in After being accepted as an expert in the field of analytical chemistry. Mr. Wood testified that he is the individual responsible for the preparation of the batch solutions of stock solution. After preparation of approximately 24 Liters of stock solution, he then dispenses the stock solution into between 200 and 300 three ounce medicine bottles (hereinafter referred to as the ``Small Bottles'') [T-Wood, P-10, 11]. Mr. Wood then takes the first bottle dispensed, the last bottle dispensed and 8 bottles at random, and prepares simulator solution for injection on to the gas chromatograph for testing. He then takes the results of each of those analyses, averages them, and reports that figure on the certificate of analysis along with standard deviation and other data [T-Wood, P-11]. Since 1993, Mr. Wood has tested approximately 400 bottles. To date, none of those tested have resulted in readings outside the permitted ranges allowed by F.A.C. Chapter 11D-8 [T-Wood, P- 13]. While the procedures utilized by Mr. Wood for the preparation of the Small Bottles are not contained within F.A.C. Chapter 11D-8, he opined that the procedures are scientifically valid. Mr. Wood testified that the field technicians are trained to follow a particular procedure designed to give specific results within a range determined to be scientifically adequate by both HRS and FDLE [T-Wood, P-34, 35]. There are over 500 Intoxilyzer 5000 units in operation throughout the State of Florida. According to Mr. Wood, he has experienced no problems with the use of his stock solution in the field. Mr. Bernard (``Buck'') B. Justice, FDLE Alcohol Breath testing Inspector, testified for the state. Mr. Justice is responsible for the registration, inspection, and certification of both breath testing instruments and breath test technicians. Mr. Justice has been intimately involved in the science and operation of evidential breath technicians in the State of Florida since After receiving testimony, Mr. Justice was accepted by this Court as an expert in the field of Evidentiary Breath Testing. Mr. Justice testified that there have been occasions where he has received ``bad batches'' of stock solution [T-Justice; P-19]. This has been confirmed by his results during the testing of the Intoxilyzer 5000 required by F.A.C. Chapter 11D-8. If the results obtained during this testing are outside the specific authorized ranges, the machine is taken out of service. Mr. Justice admitted that there are no written procedures ``in the field'' for the preparation of the simulator solution taken from the Small Bottles received from Mr. Wood [T-Justice, P-36]. However, the breath test maintenance technicians are taught the procedure during their training [T-Justice, P-38]. Moreover, Mr. Justice receives the printout cards from each maintenance technician's monthly and annual testing of the Intoxilyzer 5000 [T-Justice, P-40]. Ms. Beverly Gray, Licensed Breath Test Maintenance Technician for the Hillsborough County Sheriff's Office (``HCSO''), testified for the State. Ms. Gray has been a licensed breath test technician for over 17 years and has been certified to perform the maintenance testing on the

8 breath test instruments for the past three years [T-Gray, P-4, 5]. Ms. Gray also functions as the records custodian for the Central Breath Testing Unit (``CBT'') of the HCSO. Ms. Gray uses the stock solution created and supplied by FDLE to create the known simulator solution needed to comply with F.A.C. Rule 11D Ms. Gray mixes ``known solutions'' to simulate a 0.050, 0.100, and g/210l breath test. Ms. Gray performs the maintenance testing of the 5 HCSO CBT units on a monthly basis [T-Gray, P-5] and performed the testing of Instrument on April 13, 1994 and May 30, 1994 (the unit used to test Defendant, Steven R. Phillips' breath). On both dates, Ms. Gray certified that Instrument complied with the FDLE inspection standards set forth within F.A.C. Rule 11D and all values were within the permitted ranges [T-Gray, P-7 and State Exhibits 3 and 4]. Moreover, the yearly Department Inspection of Instrument was performed by Mr. Bernard B. Justice on October 4, On that date, Mr. Justice certified that Instrument complied with the FDLE inspection standards set forth within F.A.C. Rule 11D and all values were within the permitted ranges [T-Gray, P-8 and Exhibit 5]. Ms. Gray also identified the Department Initial Inspection Checklist which certifies the test data as of April 11, 1994 for Instrument [T-Gray, P-9 and State Exhibit 6]. Ms. Gray testified to the specific procedures she utilizes in performing the testing required by F.A.C. Chapter 11D-8 [T-Gray, P-10-13] and also testified that she follows the specific procedures outlined within FDLE/ICP Form October, 1993 and her specific training with respect to the mixing of the simulator solution [T-Gray, P-19, 20 and State Exhibit 7]. DECISIONAL LAW STANDARDS REGARDING THE ADMISSIBILITY OF BREATH TEST RESULTS It is axiomatic that the purpose of those portions of the Rule which direct law enforcement to use only approved techniques is to ``ensure reliable scientific evidence for use in future court proceedings and to protect the health of those persons being tested.'' State v. Bender, 382 So. 2d 697 (Fla. 1980). Since this Court has determined that the Motion before it is more properly a Motion in Limine, the Defendant has the burden of proving his allegations. Moreover, the Defendant faces a presumption of correctness that FDLE has correctly determined that no rules are necessary with respect to the mixing of the simulator solution. Florida East Coast Railway Company v. King, 158 So. 2d 523 (Fla. 1963). ``Whether to admit test results is not a question of which rule of criminal procedure applies, but a question of applying the correct rule of evidence.'' Donaldson v. State, 561 So. 2d 648, 650 (Fla. 4th DCA 1990), approved, 579 So. 2d 728 (Fla. 1991). Prior to the adoption of Florida's implied consent law, ``scientific tests of intoxication were admissible into evidence without any statutory authority if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.'' Bender, 382 So. 2d at 699. If the state failed to establish this required predicate, the evidence was not admissible. With the adoption of Florida's Implied Consent Law, the State must show that the person conducting the breath test is properly licensed and substantially complied with the applicable rules and regulations, a presumption is created that the results of the breath test are admissible. Robertson v. State, 604 So. 2d 783, 789 (Fla.

9 1992). If the defendant objects to the admission of a breath test result and challenges compliance with the testing procedure, the State then has the burden of proving that the tests were conducted in substantial conformity with the applicable rules and regulations. Dept. of Hwy. Safety v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994); State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA), rev. den., 591 So. 2d 184 (Fla. 1991); rev. denied, 591 So. 2d 184 (Fla. 1991); State v. Ingram et al., 3 Fla.L.Weekly Supp. 193 (Duval County Court 1995). The Court concludes that the Defendant's claim that the Florida Department of Law Enforcement (``FDLE'') procedures for validating reliability are scientifically inadequate and unreliable, is without merit. The uncontroverted testimony presented was that the procedures detailed by F.A.C. Chapter 11D-8 are stringently followed by FDLE, the local breath test maintenance technicians, as well as the breath test technicians who administer the breath tests on a daily basis. Thus, when the stock solution, with a known and certified value, is mixed and introduced into an intoxilyzer, if the number corresponding to the ``known solution'' is obtained, the machine is operating properly and is left in service. If results outside the ranges specified within F.A.C. Chapter 11D-8 are obtained, the machine is taken out of service. The hypothetical situations raised by the Defense are ``far too speculative for this Court to encroach upon FDLE's discretionary authority pursuant to its obligation under (1)(b)(2).'' State v. Misterka, 3 Fla.L.Weekly Supp. 293 (Palm Beach County Court 1995). While this Court recognizes that science is a dynamic and not a static field, the fact remains that FDLE must approve and specify the technology and methods to insure accurate test results. This designation must be ``specific'' and the methods so specified shall be followed in ``all'' such testing. Mehl v. State, 532 So. 2d 593 (Fla. 1993). All such methods and procedures are to be found in formally promulgated rules, following public hearing and input. State v. Reisner, 584 So. 2d 141 (Fla. 5th DCA 1981); See also, (1)(f)(1), Florida Statutes (1993). FDLE can, if it chooses to do so, study the premix simulator solution and thereafter hold a public hearing and promulgate an appropriate rule if it chooses to do so. REFUSAL CASES There is a second group of Defendants who suggest that their Motions to Suppress and/or Motions in Limine be granted because of the specific challenges raised by the Defendant. The Hillsborough County Sheriff's Office uses the C.M.I., Inc. Intoxilyzer 5000 series breath testing machine. This machine has been approved for use by law enforcement (F.A.C. Rule 11D- 8/003(2)) in satisfying the provisions of and The machine and its results are an ``approved chemical or physical test'' of a driver's breath for the purpose of determining the alcoholic content. The Court notes that none of the Defendants presented any evidence to establish that an approved test was unavailable in Hillsborough County, Florida, at the time of his or her arrest or that because of their knowledge of the ``unknown value'' of the stock or simulator solution, they requested a blood or urine test as an alternative ``approved'' test.

10 A driver who refuses to submit to a breath test may not suppress or limit the admission of his or her ``refusal'' on the basis that the refused test lacked the specific accuracy or precision because those matters are irrelevant where the test has been refused. Based upon the foregoing, it is: ORDERED AND ADJUDGED that Defendant's Motion to Suppress is hereby Denied. 1 The term Defendant or Defendants shall hereinafter refer collectively to the Defendant, Steven R. Phillips, and all other Defendants who have adopted Phillips' motion or who have filed a similar motion within this Division of the Hillsborough County Court. 2 This Court wishes to gratefully acknowledge the superlative effort of Judge Linda F. McCallum and Judge Eleni E. Derke, Duval County Court Judges, in authoring their Order in the case of State v. Ingram, et al., 3 Fla. L. Weekly Supp Much of the framework for this Court's Order was taken from their research. * * *