breath test operator unlimited discretion as to length of blow
breath test operator unlimited discretion as to length of blow
Rules which give breath test operator unlimited discretion as to length of blow
Criminal law -- Driving under influence -- Evidence -- Breath test -- Substantial compliance with administrative rules -- Motion to exclude breath test results on ground that rules do not provide for uniform testing procedure is granted -- Rules which give breath test operator unlimited discretion as to length of blow and allow operator to require longer blow than manufacturer's requirement, allow operator to tell subject to blow as hard as possible, which creates possible false high reading, and allow operator to obstruct exhaust ports of machine enable operators to manipulate test results and do not create scientifically reliable test
STATE OF FLORIDA vs. BRUNO CESAR DA ROCHA and KATHARINE McKAY STICE, Defendants. County Court, 2nd Judicial Circuit in and for Leon County. Case Nos. 2005CT3951A1 & 2006CT1354A1. November 7, 2006. Augustus D. Aikens, Jr., Judge. Counsel: Danielle Kelley and Kate Doyle, Assistant State Attorneys. A. Collin Cherry, Law Office of Collin Cherry, Tallahassee, for Defendants.
ORDER GRANTING MOTIONS IN LIMINE
THIS CAUSE came on to be heard before this court on Defendants' Motions in Limine and the Court having previously heard the testimony of witnesses and the argument of Counsel for Defendants and the State regarding the same issues in The State of Florida vs.: Ashley Arcement, 2005CT2461 [13 Fla. L. Weekly Supp. 1399a]; Michael Arnwine 2006CT4089; Robert Davis, III, 2005CT4389; Michael Green, 2005CT2717; Geoffery Harkan, 2005CT4424; Ronald Lockley 2005CT5107; Vernon Powell 2005CT2945; Rebecca Ruellow, 2005CT2718; Adam Smith 2005CT2070; Michael Waters 2005CT2913; David Welling, 2005CT470; and Lindsey Wilkins, 2005CT2697, the parties stipulating to the facts and adopting the previous arguments and evidence as presented in the above hearings and the court being otherwise fully advised in the premises, finds as follows:
I. FINDINGS OF FACTS
1. Both of the Defendants were arrested and charged with Driving Under the Influence (DUI).
2. After the arrest, all were placed in custody, and then read the Florida Implied Consent law under Section 316.1932(1)(a)1.a., Florida Statutes.
3. Thereafter, they all submitted to testing by the Intoxilyzer 5000. The breath samples from each Defendant was above .08 grams of alcohol per 210 liters of breath.
4. The law enforcement personnel in each case utilized Florida Department of Law Enforcement Alcohol Testing Program Breath Test Result Affidavit, FDLE/ATP Form 14 -- Revised March 2002, Ref. Pursuant to Rule D-8.007, F.A.C. in administering the Intoxilyzer 5000 to test each Defendant.
5. The Florida Department of Law Enforcement/Alcohol Tasting Program (hereinafter “FDLE/ATP”) Form 14 is used to record historical facts of each Defendant testing under the Intoxilyzer 5000 instrument. Most importantly, it is to provide the procedural steps the breath test operator is required to follow in utilizing the Intoxilyzer 5000 instrument.
6. The form is a self-authenticating legal document, which is admissible in evidence. Form 14 provides:
“In accordance with section 316.1934(5), F.S., this completed form is admissible without further authentication and is presumptive proof of the result herein.”
7. Specifically, FDLE/ATP Form 14 gives the following instructions in response to the Intoxilyzer 5000 prompts and procedures at Steps 6 and 9:
“6. When LED displays flashing message, “PLEASE BLOW” or “PLEASE BLOW/R”, have the subject blow into the breath tube through the mouthpiece until told to stop.”(E.S)
* * *
“9. When LED displays flashing message, “PLEASE BLOW” or “PLEASE BLOW/R” have the subject blow into the breath tube through the mouthpiece until told to stop.”(E.S.)
8. The Intoxilyzer 5000 manufacturer specifies a 6 second blow is necessary to provide an acceptable sample to evaluate a person's breath alcohol level. (T-60, L 4-10).
9. Under FDLE's previous Form 23, breath test subjects were instructed to blow until the Intoxilyzer 5000 tone stops. That tone could be heard for 6 seconds. (T-84, L 17-19).
10. Laura Barfield also testified the rule was changed “to give the operator control over obtaining a sample by having the subject provide a sample until they
11. Laura Barfield also testified Form 14 is intended to exceed the manufacturer's requirements:
“The rules don't concentrate what the manufacturer requires. The manufacturer requires a minimum acceptable sample. Everyone must meet this minimum. The rules go above and beyond. They take the minimum and they go further by having a person blow as long as they possibly can to ensure a more accurate sample upon which you get the quantitative results.” (T-92, L 11-17).
12. When a subject provides a minimum acceptable sample, Laura Barfield testified the instrument will display a zero. However, a minimum acceptable sample is not satisfactory to the Department:
“Q. . . I've got someone that's been accused of DUI. He comes in, we have read him implied consent and he has agreed to take the breath test, and he sits down at the table. You give him -- he sits down and you give him the tube and he starts blowing. The number, like you said, will start going up. When he has reached an acceptable sample a legal sample, something that we can bring to this court and use, that machine shows a zero, is that correct?”
13. When the zero pops up, Laura testified the instrument has determined the minimum acceptable sample requirements have been met:
“It's telling you that it has met a minimum acceptable sample requirement, meaning it met slope, it met pressure and it met time. It's met all three of those parameters.” (T-95, L5-7).
14. When the zero pops up the operator can have the subject stop blowing even though the numbers are still rising and the sample would be admissible in court. (T-95, L 14-23) (T-96, L 10-15).
15. The instrument can be operated with its numerical display on or off at the discretion of each testing agency (T-98, L 7-9). The State argues that by allowing the operator to tell the subject to blow until he sees the numerical display levels off, the operator can assure deep lung air is reached.
16. An operator is also able to watch the numerical display and could tell the person to stop when he gets within .02 of a previous sample. (T-99, L13-17).
II. ISSUES PRESENTED
17. The issues before Court are framed by Defendant's motions. Defendants request the Court to suppress Defendants' intoxilyzer test results and require the State not to mention or refer to Defendants' results because the rules relating to administering intoxilyzer tests are
insufficient/inadequate to insure the reliability of the Defendants' test results.
18. Specifically, Defendants point to FAC 11D-8.017, Form 14, Paragraph 6 through 9 and argue that the procedures required by Form 14, paragraphs 6 through 9 allow law enforcement officers discretion to control the length of a Defendant's blow and thereby gives the breath test operator the ability to:
a. Manipulate breath test readings,
b. Determine who blows over or under .08, and
c. Bring two samples within .02 of each other.
III. STATUTORY AND LEGAL FRAME WORK
19. The Florida Legislature has delegated to the FDLE/ATP the authority to promulgate rules for the administration of the implied consent program. Section 316.1932, Florida Statutes, provides that the Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection and regulation of the breath test instruments and shall promulgate rules for the administration of the implied consent program.
20. Florida's implied consent law provides that a law enforcement officer who has reasonable cause to believe an individual is driving under the influence of an alcoholic beverage may request the individual to submit to an approved breath test for the purpose of determining the alcoholic content of his or her breath. Section 316.1932(1)(a), Florida Statutes.
21. To be valid, an analysis of a person's breath must be performed substantially in accordance with the methods, rules and regulations approved by FDLE. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid. Section 316.1932(1)(b)(2), Florida Statutes. FDLE Rules are found in chapter 11-D-8 of the Florida Administrative Code.
22. As previously stated, breath test results are admissible in evidence if the tests are administered in substantial compliance with applicable FDLE rules. Section 316.1934(2) and (3), Florida Statutes.
III. CONCLUSION OF LAW
23. This Court has determined Defendants' motion to be considered as a Motion in Limine. Defendants seek to preclude the introduction of any intoxilyzer 5000 results because current FDLE rules do not adequately provide for uniform breath testing procedures.
24. According to the testimony of Laura Barfield and as demonstrated by the graphs she drew at the hearing, an operator can obtain a wide variance in the intoxilyzer reading simply by varying the time the test subject blows into the machine. One operator who has a subject blow into the machine for an extended amount of time might get a test result substantially higher than the operator who has the same test subject blow into the machine for the minimum six seconds required by the manufacturer. Despite such a huge variation, either of the two readings would be properly admitted into evidence, according to Ms. Barfield, since either reading is in conformity with Form 14. This is so because Form 14 does not address any uniform standards for the time of the blow. The duration of the blow is left solely to the discretion of the operator. Contrary to the State's argument, the operator is not required to have the subject blow until the numerical display levels off. The rule does not require the numerical display to be on.
25. The Defendants assert that due to the absence of a uniform time standard in Form 14, operators are able to manipulate the breath test result by:
a. Telling the person to take a deep breath and blow as hard as they possibly can which would pressurize the sample chamber, and you will get a false high reading.
b. Have the subject blow longer than required by the manufacturer; and
c. Obstruct the exhaust port on the machine. (T-53, L 13-19).
26. In response to Defendants' assertion, Ms. Barfield acknowledged the Defendants' previously expressed concern of taking a deep breath and blowing hard “could trigger a mouth alcohol response because you're putting so much concentration through too quickly.” (T-91, L 19-23).
27. Accordingly, this court finds that such operator “blow hard” instructions create a possible manipulation of the Intoxilizer 5000 results that is not properly addressed by FDLE's rules.
28. Secondly, as to the claim that exhaust ports can be obstructed, Ms. Barfield testified that it is something operators are “trained not to do.” (T-92, L4-5). Likewise, this court finds that practice also creates a possible area of manipulation, which is not addressed in the FDLE's rules.
29. Finally, Defendants argue that the instruction to have subjects to “blow longer than the manufacturers requirement” for an acceptable sample results in manipulated results.
30. Ms. Barfield acknowledges Form 14 goes “above and beyond” manufacturer's requirements. “They take the minimum and they go further, by having the person blow as long as they possibly can to ensure a more accurate sample upon which you get the quantitative results.” (T-92, L14-17).
31. Ms. Barfield, the State's expert, testified that the objective of the instruction in Form 14 is to have the subject blow into the machine as long as possible to reach the “deep lung air” which would give the most accurate reading according to Ms. Barfield. There is nothing in the rule which guides the operator as to when deep air lung is reached. Form 14 merely instructs the operator to require the subject to blow until the operator tells them to stop. The problem here is there is no guidance given to the operator on the collection of the sought after deep lung air. The rule does not give any guidance on the use of the numerical display to determine when deep lung air is reached.
32. When challenged about Form 14 during the hearing, Ms. Barfield continually referred to the training given to the operators that teaches the operators to have the test subject blow as long as possible. The rule fails to provide guidance to operators in recognizing the methods and the extent of a physically possible blow. Ms. Barfield testified that gender plays a role in determining what is possible among women and men during a 6-second blow (T-84, L 13-16). It must also be true that differences exist based on age, health, and physical condition of the subject. Likewise, the rule fails to address these differences.
33. As Judge John D. O'Brien correctly observed in State v. Hoover et al., 2003-1754 CTMA, Fourteenth Judicial Circuit, In and For Bay County:
“It is the very purpose of the rules to make the test reliable, and those rules are “essential” according to our Supreme Court. This Court simply cannot find that the tests are reliable enough with rules that permit wide variation in test results. The bottom line is simply that the legislature has specifically mandated FDLE to make rules which assure scientific reliability and they have not done so. To satisfy the statute, the rules must be sufficiently unambiguous that the results do not unreasonably vary simply by operator discretion. Rules that permit a test operator to have the subject blow into the machine as long as he, in his undirected discretion wishes, with attendant variation in test results, is insufficient to create a scientifically reliable test.”
Accordingly, it is
ORDERED AND ADJUDGED that the motion of the Defendants is hereby GRANTED and the breathalyzer result obtained in these cases will not be admissible in any subsequent trial without additional appropriate showings.
breath test operator unlimited discretion as to length of blow
Rules which give breath test operator unlimited discretion as to length of blow
Criminal law -- Driving under influence -- Evidence -- Breath test -- Substantial compliance with administrative rules -- Motion to exclude breath test results on ground that rules do not provide for uniform testing procedure is granted -- Rules which give breath test operator unlimited discretion as to length of blow and allow operator to require longer blow than manufacturer's requirement, allow operator to tell subject to blow as hard as possible, which creates possible false high reading, and allow operator to obstruct exhaust ports of machine enable operators to manipulate test results and do not create scientifically reliable test
STATE OF FLORIDA vs. BRUNO CESAR DA ROCHA and KATHARINE McKAY STICE, Defendants. County Court, 2nd Judicial Circuit in and for Leon County. Case Nos. 2005CT3951A1 & 2006CT1354A1. November 7, 2006. Augustus D. Aikens, Jr., Judge. Counsel: Danielle Kelley and Kate Doyle, Assistant State Attorneys. A. Collin Cherry, Law Office of Collin Cherry, Tallahassee, for Defendants.
ORDER GRANTING MOTIONS IN LIMINE
THIS CAUSE came on to be heard before this court on Defendants' Motions in Limine and the Court having previously heard the testimony of witnesses and the argument of Counsel for Defendants and the State regarding the same issues in The State of Florida vs.: Ashley Arcement, 2005CT2461 [13 Fla. L. Weekly Supp. 1399a]; Michael Arnwine 2006CT4089; Robert Davis, III, 2005CT4389; Michael Green, 2005CT2717; Geoffery Harkan, 2005CT4424; Ronald Lockley 2005CT5107; Vernon Powell 2005CT2945; Rebecca Ruellow, 2005CT2718; Adam Smith 2005CT2070; Michael Waters 2005CT2913; David Welling, 2005CT470; and Lindsey Wilkins, 2005CT2697, the parties stipulating to the facts and adopting the previous arguments and evidence as presented in the above hearings and the court being otherwise fully advised in the premises, finds as follows:
I. FINDINGS OF FACTS
1. Both of the Defendants were arrested and charged with Driving Under the Influence (DUI).
2. After the arrest, all were placed in custody, and then read the Florida Implied Consent law under Section 316.1932(1)(a)1.a., Florida Statutes.
3. Thereafter, they all submitted to testing by the Intoxilyzer 5000. The breath samples from each Defendant was above .08 grams of alcohol per 210 liters of breath.
4. The law enforcement personnel in each case utilized Florida Department of Law Enforcement Alcohol Testing Program Breath Test Result Affidavit, FDLE/ATP Form 14 -- Revised March 2002, Ref. Pursuant to Rule D-8.007, F.A.C. in administering the Intoxilyzer 5000 to test each Defendant.
5. The Florida Department of Law Enforcement/Alcohol Tasting Program (hereinafter “FDLE/ATP”) Form 14 is used to record historical facts of each Defendant testing under the Intoxilyzer 5000 instrument. Most importantly, it is to provide the procedural steps the breath test operator is required to follow in utilizing the Intoxilyzer 5000 instrument.
6. The form is a self-authenticating legal document, which is admissible in evidence. Form 14 provides:
“In accordance with section 316.1934(5), F.S., this completed form is admissible without further authentication and is presumptive proof of the result herein.”
7. Specifically, FDLE/ATP Form 14 gives the following instructions in response to the Intoxilyzer 5000 prompts and procedures at Steps 6 and 9:
“6. When LED displays flashing message, “PLEASE BLOW” or “PLEASE BLOW/R”, have the subject blow into the breath tube through the mouthpiece until told to stop.”(E.S)
* * *
“9. When LED displays flashing message, “PLEASE BLOW” or “PLEASE BLOW/R” have the subject blow into the breath tube through the mouthpiece until told to stop.”(E.S.)
8. The Intoxilyzer 5000 manufacturer specifies a 6 second blow is necessary to provide an acceptable sample to evaluate a person's breath alcohol level. (T-60, L 4-10).
9. Under FDLE's previous Form 23, breath test subjects were instructed to blow until the Intoxilyzer 5000 tone stops. That tone could be heard for 6 seconds. (T-84, L 17-19).
10. Laura Barfield also testified the rule was changed “to give the operator control over obtaining a sample by having the subject provide a sample until they
11. Laura Barfield also testified Form 14 is intended to exceed the manufacturer's requirements:
“The rules don't concentrate what the manufacturer requires. The manufacturer requires a minimum acceptable sample. Everyone must meet this minimum. The rules go above and beyond. They take the minimum and they go further by having a person blow as long as they possibly can to ensure a more accurate sample upon which you get the quantitative results.” (T-92, L 11-17).
12. When a subject provides a minimum acceptable sample, Laura Barfield testified the instrument will display a zero. However, a minimum acceptable sample is not satisfactory to the Department:
“Q. . . I've got someone that's been accused of DUI. He comes in, we have read him implied consent and he has agreed to take the breath test, and he sits down at the table. You give him -- he sits down and you give him the tube and he starts blowing. The number, like you said, will start going up. When he has reached an acceptable sample a legal sample, something that we can bring to this court and use, that machine shows a zero, is that correct?”
13. When the zero pops up, Laura testified the instrument has determined the minimum acceptable sample requirements have been met:
“It's telling you that it has met a minimum acceptable sample requirement, meaning it met slope, it met pressure and it met time. It's met all three of those parameters.” (T-95, L5-7).
14. When the zero pops up the operator can have the subject stop blowing even though the numbers are still rising and the sample would be admissible in court. (T-95, L 14-23) (T-96, L 10-15).
15. The instrument can be operated with its numerical display on or off at the discretion of each testing agency (T-98, L 7-9). The State argues that by allowing the operator to tell the subject to blow until he sees the numerical display levels off, the operator can assure deep lung air is reached.
16. An operator is also able to watch the numerical display and could tell the person to stop when he gets within .02 of a previous sample. (T-99, L13-17).
II. ISSUES PRESENTED
17. The issues before Court are framed by Defendant's motions. Defendants request the Court to suppress Defendants' intoxilyzer test results and require the State not to mention or refer to Defendants' results because the rules relating to administering intoxilyzer tests are
insufficient/inadequate to insure the reliability of the Defendants' test results.
18. Specifically, Defendants point to FAC 11D-8.017, Form 14, Paragraph 6 through 9 and argue that the procedures required by Form 14, paragraphs 6 through 9 allow law enforcement officers discretion to control the length of a Defendant's blow and thereby gives the breath test operator the ability to:
a. Manipulate breath test readings,
b. Determine who blows over or under .08, and
c. Bring two samples within .02 of each other.
III. STATUTORY AND LEGAL FRAME WORK
19. The Florida Legislature has delegated to the FDLE/ATP the authority to promulgate rules for the administration of the implied consent program. Section 316.1932, Florida Statutes, provides that the Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection and regulation of the breath test instruments and shall promulgate rules for the administration of the implied consent program.
20. Florida's implied consent law provides that a law enforcement officer who has reasonable cause to believe an individual is driving under the influence of an alcoholic beverage may request the individual to submit to an approved breath test for the purpose of determining the alcoholic content of his or her breath. Section 316.1932(1)(a), Florida Statutes.
21. To be valid, an analysis of a person's breath must be performed substantially in accordance with the methods, rules and regulations approved by FDLE. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid. Section 316.1932(1)(b)(2), Florida Statutes. FDLE Rules are found in chapter 11-D-8 of the Florida Administrative Code.
22. As previously stated, breath test results are admissible in evidence if the tests are administered in substantial compliance with applicable FDLE rules. Section 316.1934(2) and (3), Florida Statutes.
III. CONCLUSION OF LAW
23. This Court has determined Defendants' motion to be considered as a Motion in Limine. Defendants seek to preclude the introduction of any intoxilyzer 5000 results because current FDLE rules do not adequately provide for uniform breath testing procedures.
24. According to the testimony of Laura Barfield and as demonstrated by the graphs she drew at the hearing, an operator can obtain a wide variance in the intoxilyzer reading simply by varying the time the test subject blows into the machine. One operator who has a subject blow into the machine for an extended amount of time might get a test result substantially higher than the operator who has the same test subject blow into the machine for the minimum six seconds required by the manufacturer. Despite such a huge variation, either of the two readings would be properly admitted into evidence, according to Ms. Barfield, since either reading is in conformity with Form 14. This is so because Form 14 does not address any uniform standards for the time of the blow. The duration of the blow is left solely to the discretion of the operator. Contrary to the State's argument, the operator is not required to have the subject blow until the numerical display levels off. The rule does not require the numerical display to be on.
25. The Defendants assert that due to the absence of a uniform time standard in Form 14, operators are able to manipulate the breath test result by:
a. Telling the person to take a deep breath and blow as hard as they possibly can which would pressurize the sample chamber, and you will get a false high reading.
b. Have the subject blow longer than required by the manufacturer; and
c. Obstruct the exhaust port on the machine. (T-53, L 13-19).
26. In response to Defendants' assertion, Ms. Barfield acknowledged the Defendants' previously expressed concern of taking a deep breath and blowing hard “could trigger a mouth alcohol response because you're putting so much concentration through too quickly.” (T-91, L 19-23).
27. Accordingly, this court finds that such operator “blow hard” instructions create a possible manipulation of the Intoxilizer 5000 results that is not properly addressed by FDLE's rules.
28. Secondly, as to the claim that exhaust ports can be obstructed, Ms. Barfield testified that it is something operators are “trained not to do.” (T-92, L4-5). Likewise, this court finds that practice also creates a possible area of manipulation, which is not addressed in the FDLE's rules.
29. Finally, Defendants argue that the instruction to have subjects to “blow longer than the manufacturers requirement” for an acceptable sample results in manipulated results.
30. Ms. Barfield acknowledges Form 14 goes “above and beyond” manufacturer's requirements. “They take the minimum and they go further, by having the person blow as long as they possibly can to ensure a more accurate sample upon which you get the quantitative results.” (T-92, L14-17).
31. Ms. Barfield, the State's expert, testified that the objective of the instruction in Form 14 is to have the subject blow into the machine as long as possible to reach the “deep lung air” which would give the most accurate reading according to Ms. Barfield. There is nothing in the rule which guides the operator as to when deep air lung is reached. Form 14 merely instructs the operator to require the subject to blow until the operator tells them to stop. The problem here is there is no guidance given to the operator on the collection of the sought after deep lung air. The rule does not give any guidance on the use of the numerical display to determine when deep lung air is reached.
32. When challenged about Form 14 during the hearing, Ms. Barfield continually referred to the training given to the operators that teaches the operators to have the test subject blow as long as possible. The rule fails to provide guidance to operators in recognizing the methods and the extent of a physically possible blow. Ms. Barfield testified that gender plays a role in determining what is possible among women and men during a 6-second blow (T-84, L 13-16). It must also be true that differences exist based on age, health, and physical condition of the subject. Likewise, the rule fails to address these differences.
33. As Judge John D. O'Brien correctly observed in State v. Hoover et al., 2003-1754 CTMA, Fourteenth Judicial Circuit, In and For Bay County:
“It is the very purpose of the rules to make the test reliable, and those rules are “essential” according to our Supreme Court. This Court simply cannot find that the tests are reliable enough with rules that permit wide variation in test results. The bottom line is simply that the legislature has specifically mandated FDLE to make rules which assure scientific reliability and they have not done so. To satisfy the statute, the rules must be sufficiently unambiguous that the results do not unreasonably vary simply by operator discretion. Rules that permit a test operator to have the subject blow into the machine as long as he, in his undirected discretion wishes, with attendant variation in test results, is insufficient to create a scientifically reliable test.”
Accordingly, it is
ORDERED AND ADJUDGED that the motion of the Defendants is hereby GRANTED and the breathalyzer result obtained in these cases will not be admissible in any subsequent trial without additional appropriate showings.