Problems with Moving the Intoxilyzer 8000 By Common Carrier for Repairs

In a recent decision in State v. Drudy, 23 Fla. L. Weekly Supp. 477a (May 13, 2015), Judge Scott A. Farr, in Tampa, Hillsborough County, FL, found that the use of common carrier to transport the Intoxilyzer 8000 breathalyzer between the Central Breath Testing Facility at the Hillsborough County Sheriff’s Office and the repair facilities does not violate the administrative rules.

The court found that the action of the Florida Department of Law Enforcement in performing inspections in Tallahassee on the Intoxilyzer 8000 subject to repair, rather than having a post-repair inspection performed at the HCSO CBT facility, is a permissible construction of the rules and is lawful. Therefore, the court denied the motion to suppress the breath test and breath results for violation of Florida Statute 316.1932 and FDLE 11D-8.004 filed by a criminal defense attorney.

In the opinion, the court found:

THIS MATTER having come before the Court for hearing on May 8, 2015, pursuant to the Motion to Suppress Defendant’s Breath Test and Breath Results for Violation of Florida Statute 316.1932 and FDLE Rule 11D-8.004, and the Court having considered the testimony and evidence presented at the hearing, as well as the legal authority and argument presented by counsel for the State and Defendant, and being otherwise fully advised in this matter, FINDS and ORDERS as follows:

FACTUAL BACKGROUNDEach defendant was arrested for the offense of driving under the influence and submitted to a breath test upon request by the arresting law enforcement officer. The breath test was performed using an Intoxilyzer 8000 instrument bearing serial number 80-003388 in Mr. Drudy’s case and 80-000830 in Ms. Nakajima’s case (hereinafter referred to as the I-8000). The two witnesses who testified at the hearing were Roger Skipper, currently the supervisor of the Central Breath Testing Unit at the Hillsborough County Sheriff’s Office (HCSO), and Laura Barfield, former Program Manager of the Alcohol Testing Program at the Florida Department of Law Enforcement (FDLE).

The facts as stipulated by the parties are that prior to the breath tests performed by each of the defendants, the I-8000 was taken out of service and sent from HCSO to Enforcement Electronics in Lakeland, Florida for repairs. Enforcement Electronics is an authorized repair facility. After completing the repairs, Enforcement Electronics shipped the I-800 to FDLE in Tallahassee, Florida by common carrier in order for FDLE to complete the Department inspection required by the Florida Administrative Code. There is no evidence that any damage occurred to the I-8000 during shipping. Although not part of the factual stipulation, both Ms. Barfield and Mr. Skipper testified that none of the Rules under Chapter 11D-8 expressly prohibited, or authorized, the use of a common carrier in transporting the I-8000. The rule is silent on the subject.

It was further stipulated that while at FDLE the I-8000 was subjected to a Department inspection. Subsequent to the Department inspection, the I-8000 was shipped by common carrier to HCSO where it was subjected to an agency inspection. There is no evidence either inspection was substantively flawed. It is further agreed that a Department inspection is more extensive than an agency inspection. After the agency inspection was completed the I-8000 was returned to evidentiary use.

Ms. Barfield gave an extensive history of her employment with FDLE, including her promotion to Program Manager in July, 2001. This employment terminated in 2013. During her employment, Ms. Barfield had responsibility for revising the policies and procedures to be followed by staff, including any rule changes to Chapter 11D-8, F.A.C. These rules changes included a 2004 amendment to 11D-8.004(2) which added the following language: “Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use. The inspection validates the instrument’s approval for evidentiary use.”

Until 2010, it was customary for Department inspections to be performed by FDLE regional inspectors at the local agency where the instrument was used for evidentiary purposes. Beginning in 2010, and effectively completed in January, 2011, Ms. Barfield ordered all Department inspections to be conducted at the FDLE offices in Tallahassee. Ms. Barfield indicated these changes were made because of budgetary constraints and were designed to create ways to more effectively and efficiently run the alcohol testing program while maintaining the reliability and use of the instrument. On cross examination Ms. Barfield admitted these changes were not the only manner in which FDLE expenditures could have been reduced. Despite authorizing these changes, Ms. Barfield testified at the hearing that performing these Department inspections in Tallahassee, following repair by an authorized repair facility, constitutes a violation of Rule 11D-8.004(2). In particular, Ms. Barfield testified that following repair, Rule 11D-8.004(2) requires the repair facility to return the I-8000 directly back to the local agency and for the Department to conduct its required inspection at that local agency. However, Chapter 11D-8 does not define the word “returned” and does not specifically state that the authorized repair facility must return the Intoxilyzer 8000 directly back to the local agency when repairs are completed.

Although Defendant’s motions allege the transportation of the I-8000 by common carrier is not in compliance with 11D-8, Ms. Barfield specifically stated in her testimony that the method of transport is not the issue. The issue, in Ms. Barfield’s opinion is the amendment of Chapter 11D-8 in 2006 to include FDLE within the definition of an authorized repair facility. According to Ms. Barfield, as FDLE is within the definition of an authorized repair facility, and since the rules require a Department inspection after the I-8000 is returned from an authorized repair facility, the department inspection must take place at the agency location rather than at the FDLE facility.

LEGAL ANALYSISDefendants’ first argument in support of suppressing the breath tests and breath results is that the use of common carrier, including U.S. mail, to transport the I-8000 between agencies and repair facilities is a violation of Chapter 11D-8. This argument is unsupported either by testimony or the plain language of the F.A.C. Nowhere in the rules is the method of transportation specified. Years of FDLE practice, the Defendants’ own witness and the plain language of the rule all indicate transportation of the I-8000 by common carrier is in full compliance with Chapter 11-D-8.

The second argument, pertaining to the inclusion of FDLE within the definition of an authorized repair facility does have a certain facile appeal. However, closer analysis reveals the form over substance nature of the argument. The evidence is undisputed by either party that on March 27, 2006, Chapter 11D-8 was amended to include FDLE within the definition of an authorized repair facility. It is further without dispute that the reason for the change was that in the course of performing inspections, FDLE on occasion performed an act such as replacing a tube, which technically fell within the definition of a repair. The amendment was made to prevent defense motions to dismiss or suppress based upon the argument that FDLE was not authorized to open an instrument and replace a part. There is no evidence FDLE in fact operated as a repair facility with respect to the instruments at issue. Indeed, the evidence shows each instrument was repaired by Enforcement Electronics, not FDLE. Nor is there any evidence FDLE ever had a repair facility or in fact operated as a repair facility or performed any task other than the inspection of instruments sent from repair facilities to FDLE or the originating agency.

Nevertheless, Defendants insist the Court must give Ms. Barfield’s interpretation of the rule great weight pursuant to established law requiring a court to give great weight to an agency’s interpretation of its own rules. State v. Sun Gardens Citrus, LLP, 780 So. 2d 922 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D360c]. However, during her employment with FDLE, Ms. Barfield never expressed the opinion she now expresses with regard to Rule 11D-8.004(2). Ms. Barfield has only expressed this opinion subsequent to leaving employment with FDLE and becoming employed as a private consultant. As such, her opinion is not the expression of an agency interpretation of its own rule. It is the opinion of a paid witness and entitled to no more weight than the testimony and opinion of any other witness.

Defendants suggest a March 7, 2005 memorandum from Ms. Barfield to agency inspectors is an expression of her interpretation of the rule as requiring the Department inspection to take place at the agency location rather than in Tallahassee. The memo cannot reasonably be so interpreted. The memo is merely a reminder to agency inspectors that they must comply with a recent change to Rule 11D-8.004(2) requiring a Department inspection in addition to the agency inspection prior to returning an instrument to evidentiary use. The memo merely reflected then existing FDLE practice. The memo predated the March 27, 2006 revision to the rule placing FDLE within the definition of a repair facility and the late 2010 early 2011 reorganization requiring all Department inspections to take place in Tallahassee. As such, the memo has no bearing on the present case.

Moreover, even if Ms. Barfield did have authority to speak on behalf of and bind FDLE to her interpretation, this Court still must evaluate Ms. Barfield’s credibility as it would any other witness. In other words, before the Court can give her testimony great weight, the Court must first believe her testimony. For the reasons set forth below, the Court does not find Ms. Barfield’s testimony with respect to this issue credible.

First, the Court must consider the testimony that Ms. Barfield’s departure from FDLE was under less than ideal circumstances. Of much more import however, is that every action Ms. Barfield took while at FDLE is inconsistent with her currently expressed opinion. After having been the primary drafter of the rule in question, Ms. Barfield, with approval from the Director of the FDLE, reorganized her department so as to end all field inspections of breath instruments and to have all such inspections performed in Tallahassee. Further, all former regional inspector positions were transferred to Tallahassee. The Court observed Ms. Barfield testify extensively during the hearing on this matter. There is nothing about her which suggests a lack of competence in the performance of her duties. Therefore, in order to believe her testimony, the Court must be prepared to believe Ms. Barfield knowingly instituted a policy which placed at risk every breath test result in Florida for violating the rule she herself drafted. Further, she did this without bringing the issue to the attention of her Director or FDLE legal counsel. Additionally, Ms. Barfield did this solely for cost cutting measures, even though she admitted on cross examination that costs could have been cut in other ways.

Finally, Defendants argue the Court is bound by Wilkenson v. State, 20 Fla. L. Weekly Supp. 995a (13th Cir. July 29, 2013). Wilkenson is distinguishable in that all the events in that case occurred prior to FDLE’s interpretation of Chapter 11D-8 as expressed by the reorganization of late 2010 and early 2011 in which it authorized the inspection of repaired breath instruments solely at FDLE’s Tallahassee facility.

Wherefore Defendants’ motions are DENIED.

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