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1 IN THE COUNTY COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs. CASE NO CT 9711 NC LAUREN FITZGERALD, and SEE ALL OTHER ATTACHED CASES, Defendants ~/ ORDER DENYING MOTION TO SUPPRESS This matter is before the Court on the Defendant's motion to suppress the result of a breath alcohol test performed by law enforcement on the Defendant using the Intoxilyzer 8000 testing instrument. Evidentiary hearings were held on March 28 and April 20, The Court has considered the testimony, the arguments of counsel, proposed orders from counsel and being otherwise advised in the premises. The Defendant alleges three main grounds for suppression: 1) the administrative rules under which the Intoxilyzer 8000 is operated and maintained are insufficient and invalid since they fail to set standards for the calibration of the instrument's flow sensor (Flow Sensor II);! 2) the Defendant's breath test was conducted on an instrument with unapproved modifications (Purge Valve & Screw Length); and 3) the State's failure to disclose the unapproved modifications to the Intoxilyzer 8000 violate the "full information" provision of Sec. I After an evidentiary hearing on a prior suppression motion held December 2, 20 II, the Court previously ruled that the defense had not sustained its' burden of proof that Chap. IID-8, Fla. Admin. Code, fails to or should require testing or verification that the flow sensor is properly calibrated. The current motion presents a sub-issue not raised or argued at the December 2, 20 II, hearing, yet it still pertains to the flow sensor. The parties have dubbed this subissue "Flow Sensor II." The State moved to strike the Flow Sensor II portion of the current motion. The Court elects to rule on the merits of the Flow Sensor II issue. See State v. Harvey, 573 So. 2d III (Fla. 2d DCA 1991). 1

2 (1 )(f)4., Fla. Stat. These grounds, and their associated factual findings and conclusions oflaw, are addressed separately below. Flow Sensor Calibration (Flow Sensor II) The Defendant alleges that the administrative rules under which the Intoxilyzer 8000 is operated are insufficient and invalid since they fail to set standards for the calibration of the instrument's flow sensor. This failure, argues the Defendant, results in the instrument's arbitrary delivery of a breath sample reliability warning in response to some, but not all, subject breath samples with a volume of fewer than 1.1 liters. That is, two subjects providing identical breath samples, but on different instruments, could have different results in that one receives the benefit of the written reliability warning and the other does not? The Defendant contends that this arbitrary result contravenes the requirement of Sec (1)(f)I., Fla. Stat., that FDLE's implementing breath testing rules "must provide an approved method of administration which must be followed in all such tests given under this section." The State counters that the Defendant misconstrues the "uniformity" concept of the statute to require flow sensor calibration and that the Intoxilyzer 8000 provides reliable test results even when a subject provides a breath sample with a volume fewer than 1.1 liters. The State also argues that the Defendant lacks standing to raise this argument since the recorded test results in this case did not exhibit the problem cited by the Defendant. After hearing and considering the testimony of all the witnesses presented by both the Defendant and the State, the documents introduced at the hearing, and the proposed orders submitted by each party, the Court finds that the defense has not sustained its' burden of proof that Chap. IID-8 fails to or should require testing or verification that the Intoxilyzer 8000's flow 2 The Defendant alleges that when the instrument measures a subject breath sample of fewer than 1.1 liters, the following message is printed on the test affidavit: "Breath sample not reliable for quantitative Breath Alcohol Level." 2

3 sensor is properly calibrated. Accordingly, this ground of the Defendant's motion shall be denied. Purge Valve & Screw Length Findings of Fact In 2001, the Intoxilyzer 8000 was evaluated for placement on the U.S. Department of Transportation Conforming Products List of Evidential Breath Measurement Devices. In 2002, the Florida Department of Law Enforcement (FDLE) evaluated and approved the Intoxilyzer 8000 for evidentiary use in Florida. This is the only formal, administrative rule-making approval of the Intoxilyzer 8000 in Florida. In August 2004, FDLE sent Roger Skipper and Matt Malhiot to CMI in Kentucky to work with CMI to conform the Intoxilyzer 8000 to meet Florida specifications. When Mr. Skipper and Mr. Malhiot conducted calibration checks using wet bath simulators on the Intoxilyzer 8000, the results were outside target ranges (i.e solutions were not between and and solutions were not between and 0.210). After attempting to troubleshoot the issue and consulting with CMI engineers, CMI engineers recommended drilling a 3/32 inch-diameter hole in the purge valve 3 and the use of "sure lock" connectors between the breath simulator device and the Intoxilyzer These modifications brought the calibration checks back to the expected target value. An internal engineering change order was created by CMI for the purge valve modification, but there is no evidence that written notice of the modification was sent to FDLE at that time. FDLE was verbally notified of the modification since Mr. Skipper and Mr. Malhiot both personally participated in it and they reported it to the 3 The purge valve is part of the exhaust block of the Intoxilyzer 8000 and is located after the analytical portion ofthe instrument. During a simulator test, the purpose of the valve is to close the system of the instrument to allow the pump to re-circulate vapor back to the simulator. During a subject breath test, the function of the valve is to exhaust the tested sample out of the instrument. The valve itself does not perform an analytical function. 3

4 manager of FDLE's Alcohol Testing Program, Laura Barfield. All Intoxilyzer 8000 instmments in use in Florida have the purge valve modification. The evidentiary use of the instmment in Florida began in March The screw at issue in this case is a retaining screw used to hold a cylindrical sleeve in place within the exhaust block ofthe Intoxilyzer The sleeve contains the purge valve. In a very few of the Florida instmments, the retaining screw was too long and it sometimes interfered with the proper closing of the purge valve. This condition could result in "purge fails" by the instmment. 4 The date of discovery of this issue is not in the record, but the long screw was replaced with a shorter screw as the few affected machines were returned to CMI for service. There is no evidence that the Intoxilyzer 8000 used to test the Defendant in this case had the longer-sized retaining screw. FDLE conducted four evaluations of the Intoxilyzer 8000 after Each evaluation concluded that the Intoxilyzer 8000 remained approved for evidentiary use in Florida. In 2007, the U.S. Department of Transportation (DOT) tested Intoxilyzer 8000s from FDLE and found that they passed the test for inclusion on that agency's Conforming Products List. Although these evaluations were performed on instmments that included the purge valve and shorter screw modifications, the evaluations did not include side-by-side comparisons of instmments with and without those modifications. 4 A purge fail denotes the instrument's inability to clear the sample chamber of the previously tested sample below an acceptable purge tolerance level. An air blank through the instrument's system is used after each test to return the test chamber to the tolerance level. If during a subject test the purge fail message is received and the instrument cannot achieve the acceptable tolerance level, then the subject test is terminated. 'An evaluation is perfonned per the testing procedure set forth in FDLE/ATP Fonn 34. These same procedures are also used when FDLE evaluates breath test methods and new instrumentation for approval for evidentiary use in Florida. The method/instrumentation approval process further requires that FDLE undergo the fonnal administrative rule-making process. Section 7 of Form 34 provides that "[t]he Department will detennine whether to conduct additional tests or studies necessary to evaluate previously approved instrumentation, and whether to conduct additional evaluations for quality assurance or research purposes. The procedures used and the results obtained will be recorded." 4

5 Both Mr. Skipper and Mr. Malhiot testified that the purge valve was an integral part of the purging function of the Intoxilyzer 8000 and modifications to it could affect the analytical reliability of subject breath tests. In Mr. Skipper's opinion, however, there was only a theoretically remote chance that contaminated ambient air could make its way back into the instrument's test chamber via the hole in the purge valve but, in any event, any contaminant would be pushed back out through the purge valve when the next air blank is performed as a prelude to the test of a human subject. Dr. Harley Myler testified that the modifications to the purge valve were material changes to the Intoxilyzer 8000 that required approval or recertification by FDLE. Mr. Skipper testified that according to Chapter IID-8.003, Fla. Admin. Code, as long as the method of analysis remains infrared light absorption, a modification to the Intoxilyzer 8000 does not require recertification; in these instances, Mr. Skipper stated FDLE's viewpoint that only an evaluation is necessary. All of the witnesses testified that the modifications at issue did not change the Intoxilyzer 8000's method of analysis. Based on the evidence received, the Court concludes that neither the purge valve nor the shorter screw modification affects the analytical reliability of the Intoxilyzer 8000 currently in use in Florida. Conclusions of Law Any person who accepts the privilege of operating a motor vehicle in Florida is deemed to have given consent to submit to an "approved chemical test." Sec (1) (a)l.a., Fla. Stat. FDLE has the authority to approve "breath test instruments." Sec (l)g., Fla. Stat. FDLE has the authority to approve the "techniques and methods" for breath alcohol testing. 5

6 Sec (I) (a)l.o., Fla. Stat. An "approved chemical test" must be conducted on an "approved instrument" using an "approved method of administration." Section (I) (f)!., Fla. Stat. Following FDLE's approval of the Intoxilyzer SOOO for evidentiary use in Florida, CMI modified the instrument by drilling the hole in the purge valve and replacing the long retaining screw with a shorter one. These modifications were made with the knowledge of FDLE. In August 2004, when the purge valve was modified, Sec.1ID-S.003(5), Fla. Admin. Code, required CMI to notify FDLE in writing prior to making any modification to the Intoxilyzer SOOO. Furthermore, FDLE was required to evaluate the modifications to determine if they affect the instrument's method of analysis or analytical reliability.6 The defense contends that CMI and FDLE did not comply with Rule IID.S.003 because CMI did not provide prior written notice of the proposed modifications to the instrument and FDLE failed to evaluate the modifications to determine if they affected the method of analysis or analytical reliability. Because there was no written notification, argues the defense, the Defendant was deprived of the "full information" about the breath test results required by Sec (1)(f)4., Fla. Stat. The defense also contends that the modified Intoxilyzer SOOO is not an approved breath test instrument for purposes of Sec because FDLE did not submit the modified instrument to the formal approval process. 7 Because of these failures, the defense argues that suppression of the breath test results is the appropriate remedy in this case. 6 During the hearing, the parties disputed whether the 2002 or 2004 version of Rule 1ID applies in this case. Because it must determine the legal consequence of CM!'s actions before the 2004 version of the rule took effect on December 9, 2004, the Court finds that the 2002 version is applicable. In August 2004, Rule IID-8.003(5) provided that "[a I manufacturer whose instrument has been previously approved by the Department shall notify the Department in writing prior to making any modification or adding a new option to such instrument. The Department shall evaluate such modifications or options to an approved breath test instrument and determine whether they affect the instrument's method of analysis or analytical reliability." 7 An "approval" is not the same as an "evaluation", although each uses FDLE's Fonn 34 testing procedures. An evaluation, unlike an approval, does not need to be conducted pursuant to the Administrative Procedures Act. An 6

7 The State counters that substantial compliance with Rule IID was achieved because FDLE received actual verbal notice of the modifications as they were made and the Intoxilyzer 8000, with these two modifications, has successfully passed multiple FDLE evaluations since August 2004 and U.S. DOT tests conducted in The State argues that only a modification to an approved instrument that affects the method of analysis (e.g., infrared light absorption vs. electrochemical analysis) requires submission to the fonnal approval (rulemaking) process. Short of that, FDLE need only conduct a Fonn 34 evaluation of a modification. "As a general principle, the construction of a statute or regulation by the administrative agency charged with its enforcement and interpretation is entitled to great weight and persuasive force, and the courts will not depart from that interpretation unless it is clearly erroneous." Cohen v. School Board of Dade County, Florida, 450 So. 2d 1238, 1241 (Fla. 3 rd DCA 1984); See also Daniel v. Fla. State Turnpike Authority, 213 So. 2d 585 (Fla. 1968) (holding that an agency's interpretation of a statute or question of law over which the agency has responsibility is entitled to great weight and will control unless it is clearly erroneous). After careful consideration of the 2002 version of Rule II D-8.003, the Court finds that FDLE's interpretation of the rule is not clearly erroneous. Subsection 6 of the rule contemplates the use of Fonn 34 procedures in the case of either an evaluation of an instrument for approved use in Florida (subsection 4) or an evaluation of modifications to a previously approved instrument to detennine whether they affect the instrument's method of analysis or analytical reliability (subsection 5). Subsection 7 provides that "[t]he availability or approval of new instruments, software, options, or modifications does not negate the approval status of previously approval includes all the steps of an evaluation, plus an opportunity for public input at a public hearing, including input from experts in the field. after which the modification mayor may not become part of the promulgated rules. 7

8 approved instruments, software, options, or modifications." It is reasonable to interpret this rule as providing an "approval track" for new instruments proposed for evidentiary use in Florida and an "evaluation track" for modifications to a previously approved instrument to determine whether the modifications affect analytical reliability or the method of analysis. If the method of analysis were found to be changed, then the modified instrument would need to be submitted to the more formal approval process since it would be, in essence, a new instrument. Since the Court finds that FDLE's interpretation of its rule is not clearly erroneous, it also finds that a formal approval process for the Intoxilyzer 8000, as modified by the purge valve hole and the shorter retaining screw, was not necessary. The Court agrees with the State's position that the facts in this case demonstrate substantial compliance with Rule IID by CMI and FDLE. FDLE was verbally notified of the modifications as they occurred in August 2004 and the Intoxilyzer 8000, with the modifications, underwent Form 34 testing procedures for evaluation before the instrument entered into evidentiary use in Florida in March Again, as the Court finds formal approval procedures were not required for these modifications, the FDLE evaluations (and U.S. DOT tests) together comprise substantial compliance and a showing of analytical reliability. Accordingly, this ground of the Defendant's motion shall be denied. "Full Information" per Sec (1)(04. Sec (1)(f)(4), Fla. Stat., provides that "[u]pon the request of the person tested, full information concerning the test taken at the direction of the law enforcement officer shall be made available to the person or his or her attorney." In State v. Muldowny, 871 So. 2d 911 (Fla. 5 th DCA 2004), the 2002 version of the implied consent law was at issue. There, the State refused to produce any documents at all concerning the Intoxilyzer 5000, prompting the court to 8

9 rule that the "operator's manuals, maintenance manuals and schematics" must be produced by the State under (1)(f)(4) and rule This disclosure was necessary "to determine whether the intoxilyzer (sic) actually used to establish [the defendants'] driving impairment had been substantially modified by the inclusion of parts that were not on the schematics or whether the machine was approved by the Florida Department of Law Enforcement (FDLE)." 871 So.2d at The court noted that an inquiry under Richardson 8 and Lower/ is necessary when one party claims the other has not complied with disclosure obligations. The first step in a Richardson inquiry is to decide if a failure to disclose has occurred. If the court determines it has occurred, the inquiry then moves to further questions: whether the failure was willful or inadvertent, substantial or trivial, material or immaterial, and finally whether it prejudiced the defendant in his trial preparation. State v. Schopp, 653 So.2d 1016, 1019 (Fla. 1995). If the court determines there was a violation and that it was prejudicial, the court must then decide what can be done to remedy the failure and to reduce or eliminate the prejudice. Richardson, 246 So.2d at 775; Lowery, 610 So.2d at 659. Exclusion of evidence is not the only remedy available and "less drastic sanctions" must also be considered. Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA). There is no dispute in the present case that FDLE had knowledge of the purge valve and shorter screw modifications to the approved Intoxilyzer These modifications, however, were not memorialized in a writing that came into FDLE's possession, so there were no documents to disclose in response to a "full information" request. See Moe v. State, 944 So. 2d 1096 (Fla. 5th DCA 2006). Nevertheless, on the evidence presented, the Court finds that a failure to disclose occurred. 8 Richardson v. State, 246 So. 2d 771 (Fla. 1971). 9 Lowery v. State, 610 So. 2d 657 (Fla. 1" DCA 1992). 9

10 The defense characterizes the facts in this case as evidencing a calculated subterfuge by FDLE to avoid disclosure of the purge valve and screw modifications by consciously failing to require that CMI document the modifications in writing. However, the Court finds that the record is not sufficient to establish that the failure to disclose was willful. Furthermore, with regard to the substantial vs. trivial and material vs. immaterial analyses, considering the Court's finding that the modifications did not affect the analytical reliability of the Intoxilyzer 8000, the Court further finds that the failure to disclose is more insubstantial and immaterial than substantial and material. Similarly, the overall detennination of the Court is that the failure to disclose has not prejudiced the Defendant's trial preparation. This conclusion is based on the finding that the modifications at issue did not require formal approval by FDLE and that they did not affect the analytical reliability of the Intoxilyzer It is, thereupon, ORDERED AND ADJUDGED that the motion to suppress is DENIED. DONE AND ORDERED in Chambers in Sarasota, Sarasota County, Florida this!b day of August ~~ Marya Boehm Couuty Court Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Order has been furnished by U.S. Maillhand delivery on this /b day of August, 2012 to Spencer Rasnake, Assistant State Attorney, Sarasota, FL and to Defense counsel. Judicial Assistant 10