Fuzzy Math Fuels Myth that Florida’s DUI Refusal Rate at 82%

I was talking to a DUI enforcement officer with the Hillsborough County Sheriff’s Office a few days ago while we were waiting for a hearing. We started talking about this proposed legislation to increase the penalties for a first DUI refusal found in Florida’s 2016 Senate Bill 1244.

The officer told me that he was in favor of the legislation because the number of DUI refusals had skyrocketed across the State of Florida. When all of these articles about SB 1244 started coming out, I was reading the same thing – more people refuse DUI testing in Florida than other state and something had to be done about it.

The analysis for SB 1244 includes data from a study released by the U.S. Department of Transportation National Highway Traffic Safety Administration regarding breath test refusal rates. See Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

Florida BAC Refusal Rates by Percentage - Flawed

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005. And this figure was cited in the Florida Senate Bill Analysis and Fiscal Impact Statement that was prepared by “the professional staff of the Committee on Judiciary.”

The study showed that Florida had the highest rate of refusal of any state in the country. In fact, the country as a whole ranged from 19 to 25 percent.

It looks like that data is just plain wrong. The report explains how it arrived at this breath test refusal rate of 82 percent in Florida.  The authors of the study reported that Florida has only 26,777 BAC test requests and 21,966 BAC refusals which does equal 82.0%.

However, Florida had way more than 26,777 BAC test requests in 2011 because nearly every DUI arrest results in a request for a BAC test. The DHSMV reported that 55,722 DUI tickets were issued in Florida in 2011 – 9,328 were issued by the FHP, 23,649 were issued by police departments in Florida, and 21,868 were issued by Florida Sheriffs departments.

Assuming that 55,722 DUI tickets were issued and all of them involved a BAC test request, then the percentage of refusals is closer to 39%. That number is almost the same as the percentage of refusals in 2005 which was 40%. So the authors totally got those numbers wrong. Florida’s S.B. 1244 is, at least in part, a reaction to the flaw in that study.

Florida’s refusal rate is about the same as what it was in 2005.

Other studies show that there were 33,625 DUI convictions in Florida in 2011. Although the conviction does not necessarily occur in the same year as the offense, it would be nearly impossible to have more convictions for DUI then BAC test requests.

That also means that if Florida officers are issuing 55,722 DUI tickets but only requesting a BAC test in 26,777 of those cases, then a request for BAC testing is only being made 48% of the time. If that were true, instead of creating a new criminal offenses, officers should just be trained to request a BAC test in every DUI case.

Anyone else think the numbers in that study is wrong? If so, isn’t be Florida legislature making a big mistake by going off those numbers before considering this piece of legislation?

Find the link to the Bill Analysis – HERE. I also cut and paste it below [with a few minor modifications to the formatting to make it easier to read online.]


Florida Senate Bill Analysis

The Florida Senate Bill Analysis and Fiscal Impact Statement for SB 1244 was prepared by the professional staff of the Committee on Judiciary. The analysis provides:


SB 1244 increases the penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, while operating a motor vehicle, while operating a motor vehicle. The penalties include a fine, probation, and points assessed against an individual’s license. The increased penalties for first refusal closer resemble the penalties for a first-time DUI conviction under Florida law.

The bill also increases penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, and whose driving privileges were suspended for a prior refusal to submit to testing. In addition to the potential fines and jail time under current law, the person must have an ignition interlock device placed on his or her vehicle for a period of at least 1 year.

Furthermore, a court may not withhold adjudication of guilt, or the imposition of a sentence or penalty, on a person who has had a prior license suspension for refusing testing.

Present Situation: Florida’s Informed Consent Refusal

Any person who accepts the privilege of operating a motor vehicle within this state is deemed to have given his or her consent to submit to an approved test of the alcohol content of his or her blood, breath, or urine. Section 316.1932(1)(a)1.a., F.S.

The test must be incidental to a lawful arrest, and administered at the request of a law enforcement officer who has a reasonable belief such person was driving a motor vehicle while under the influence of alcoholic beverages.

The Department of Motor Vehicles will administratively suspend a person’s driving privileges for 1 year after the first refusal of alcohol testing. Section 322.2615(1)(b)1.a., F.S.

Note added by the author of this blog article:

The driver can and should contest the administrative suspension during a formal review hearing by demanding the hearing within 10 days of the arrest. This is especially true since the legislature keeps increasing the penalties for a second or subsequent refusal during an administrative hearing.

The second refusal to consent to a test will result in an administrative suspension as well as criminal charges. A second refusal occurs when  a person’s driving privileges were suspended for a prior refusal, and he or she refuses to submit to an alcohol test for a second time. A person’s motor vehicle license is suspended by the Department of Motor Vehicles for 18 months if found liable for a second refusal. Section 316.1939(1)(c), F.S.

A person who refuses to submit to a alcohol test for a second time faces criminal liability for a first degree misdemeanor, punishable by up to  year in jail and $1,000 fine. Sections 316.1939(1)(e), 322.2615, F.S.

Florida’s DUI Laws

Florida’s current DUI laws provide for both administrative and criminal sanctions. A first conviction results in a fine of not less than $500 or more than $1,000. Section 316.193(2)(a)-(b), F.S.

If the individual’s blood or breath-alcohol level is 0.15 or higher, or if he or she has a minor in the vehicle, the fine is not less than $1,000 or more than $2,000. Section 316.193(4), F.S. There is a community service requirement of 50 hours. Section 316.193 (6)(a), F.S.

A first-time conviction can also lead to imprisonment for a period of no more than 6 months and up to 1 year of probation. Sections 316.193 (2)(a), 316.193 (5)(6), F.S.

Breath Test Refusal Rates

In 2014, the U.S. Department of Transportation National Highway Traffic Safety Administration released a study regarding breath test refusal rates. Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005.

The National Highway Traffic Safety Administration also found the average refusal rate for the country as a whole ranged from 19 to 25 percent. State authorities reported to the authors of the study that refusal rates will remain high if the sanctions for failing a breath-alcohol concentration test are more severe than those for refusing to submit to the test. States recommended the license suspension periods for first and repeat refusals be at least as severe as those penalties for driving under the influence.

Ignition Interlock Device

The Florida Legislature’s Office of Program Policy Analysis & Government Accountability conducted a study researching ignition interlock devices and DUI recidivism rates. Office of Program Policy Analysis & Government Accountability, Ignition Interlock Devices and DUI Recidivism Rates, (December 2014).

An ignition interlock device prevents the start of a vehicle with a breath sample above .025, collects data, and records and stores visual evidence of device use. Ignition Interlock Program at http://www.flhsmv.gov.

Research shows that ignition interlock devices, while installed, were more effective at reducing re-arrest rates for alcohol-impaired driving when compared to other sanctions, such as license suspensions. Office of Program Policy Analysis & Government Accountability, supra note 11 at 1.

The study found the six month recidivism rate for first-time DUI offenders that were not required to install an ignition interlock device was 1.74 percent. When compared, the recidivism rate for first-time offenders required to use the ignition interlock device was less with a rate of 0.34 percent.

However, the study also found that only 49 percent of Florida DUI offenders installed an ignition interlock device, as required, after completing their period of license revocation.

Effect of Proposed Changes:

SB 1244 amends section 316.1939, F.S., to require stricter penalties for all first time and subsequent alcohol test refusals. The heightened penalties reduce the incentive for a person to refuse submission to a testing for the first time in order to receive an advantage of a lesser penalty. Under the proposed law, a person who refuses to submit to testing for the first time faces the following additional penalties:

  • A fine of at least $500 but not more than $1,000;
  • Probation for 6 months; and
  • 4 points assessed against his or her driver license.

The bill also increased penalties on a person whose driving privilege was suspended for a prior refusal and he or she subsequently refuses to comply with requirements for testing. A person who fails to comply with testing after having driving privileges previously suspended for a prior refusal commits a misdemeanor of the first degree, punishable by up to 1 year in jail or a fine of up to $1,000. Additionally, the court is required to implement an ignition interlock devise upon all vehicles that are owned and routinely operated by an individual convicted of a second refusal.

The ignition interlock device remains on the vehicle for at least 1 year at the convicted individual’s sole expense.

Furthermore, the court may not suspend, defer, or withhold adjudication of guilt or the imposition of a sentence or penalty for an individual who has failed to comply with informed consent for a second time.


This blog article was published on Saturday, January 23, 2016.

New Bill With Criminal Penalties for a First Refusal: 2016 SB 1244 Amending FS 316.1939

In order to discourage individuals from refusing to submit to a chemical test during a DUI investigation, the Florida legislature created a separate crime for a second refusal. The Florida legislature reasoned that without the legislation, people might be encouraged to refuse a breath test after an arrest in order to avoid a DUI conviction.

As it stands now, Florida Statute Section 316.1939 makes it a separate or independent crime to “refuse to submit” to a chemical test of the driver’s breath, blood or urine after having previously refused to submit. The crime is a first degree misdemeanor offense punishable by up to $1,000 fine and 12 months in the county jail.

Additionally, a second refusal results in an 18 month administrative suspension with no possibility of receiving a hardship reinstatement if the suspension is not invalidated during a formal review hearing (although the driver will still qualify for a temporary hardship permit while awaiting the formal review hearing).

Click here to read more about Florida Statute Section 316.1939 and Criminal Penalties for a Second DUI Refusal

Now the Florida legislature wants to make even a first refusal to submit to the breath, blood or urine test a separate crime. 

On December 28, 2015, Florida State Senator David Simmons filed 2016 Senate Bill 1244 which imposed criminal penalties for a first refusal to submit to a breath, blood or urine test in a DUI case. The penalties are a fine between $500 to $1000, up to six months on probation, and four points on the driver’s license.

The criminal penalties are not classified as either a second degree or first degree misdemeanor but appear to be a hybrid between the two. Also, by using the phrase “by probation for six months” and not mentioning any jail time, it appears that the court cannot impose jail time for a first refusal under the proposed amendment to the statute.

What’s “By Probation for Six Months” Mean?

I searched all the statutes in Florida for that phrase in Westlaw and only this proposed bill showed up for the term “by probation for six months.” Anyone know what impact that phrase will have? Are you still entitled to a jury trial for the offense? Can jail time be imposed if you violate probation?

This legislation is unnecessary because Florida law already imposes serious consequences to a refusal on an administrative basis. And don’t forget that a person can still be convicted of DUI after refusing because other evidence might support the allegation such as the driving pattern, statements of the defendant, performance on field sobriety exercises, and observations of the arresting officer.

Additionally, Florida law allows the prosecutor to argue that the refusal is evidence of “consciousness of guilt.” In other words, the prosecutor gets to argue at trial that the defendant refused to submit to testing even knowing that it would cause a driver’s license suspension because he knew that the test would show he was guilty.

Why Change the Implied Consent Warning?

Secondly, I’m confused about why the person is not being warned that the refusal is a crime. The old warning told the person that a second refusal “is a misdemeanor.” Now the person will just be warned that a first refusal is “subject to penalties.”

If this amendment makes it a crime to refuse the first time why didn’t the bill just make it a second degree misdemeanor? Why create an entirely new category of punishment?

Why not warn the person that a refusal is a crime instead of using the phrase “subject to penalties” which could be misunderstood as administrative penalties and not criminal penalties? Changing the warning is likely to encourage more people to refuse testing and then suffer this increased penalty – especially a person who has never been in trouble before. If the people that drafted the legislation really wanted to discourage refusals, changing the warning is likely to backfire. More innocent people are going to refuse without realizing how serious the penalties are for even a first refusal.

Ignition Interlock Device for 12 Months

For either the first or subsequent refusal, the proposed amendment to the statute requires the court to impose a requirement that the driver install an Ignition Interlock Device, at their expense, for 12 months.

No Withhold of Adjudication

The statute also prohibits the court from suspending, deferring, or withholding adjudication of guilt or the imposition of a sentence or penalty.

So the legislature wants to take away these important sentencing options from the judge for what reason?

Read the statutory language below:

Continue reading

How to Guide for the DHSMV DUI Formal Review Hearing in Florida

This “how to guide” is intended for attorneys only. If you have never requested a formal review hearing before, this article goes over the basics. This guide is not intended to be legal advice. If you disagree with our strategy or have an easier way to do it – please feel free to make a suggestion below in the comments section.

For the DUI attorneys at the Sammis Law Firm in Tampa, Hillsborough County, FL, we are still conducting formal review hearings in almost every DUI case. We certainly explain the different options to our clients, but the people that hire us almost always want a formal review hearing.

Read more about the benefits of requesting a formal review hearing after a Florida DUI.

Why Request a Formal Review Hearing after a DUI Arrest?

After a DUI arrest, the arresting officer will usually issue a DUI citation that also operates as a notice of the administrative suspension. The administrative suspension starts immediately after the arrest.

Although with a first DUI, the driver has the option of stipulating to the DUI for administrative purposes during a “waiver review hearing,” it is better to demand a formal review hearing to contest the suspension.

The only downside is that if you are not successful in invalidating the suspension after the formal review hearing then the driver will suffer a hard suspension. For a first DUBAL the hard suspension is for 30 days and for a first refusal the suspension is for 90 days. The hard suspension is a small price to pay for all the benefits that come from conducting the formal review hearing.

The upside of having the formal review hearing is that the suspension might be invalidated (removed completely from the driving record) because the arresting officer or breath test operator fails to appear. Many other reasons exist for winning a formal review hearing including:

  • the DUI Packet isn’t received by the DHSMV BAR before the formal review hearing;
  • the stop was invalid;
  • conflicting evidence;
  • no valid breath or blood test;
  • the officer didn’t attest to the probable cause statement;
  • no evidence of driving or actual physical control;
  • missing or illegible documents;
  • the driver did not refuse;
  • no (or improper) implied consent warnings;
  • the refusal affidavit wasn’t attested to;
  • no probable cause that the driver was under 21 (for a zero tolerance suspension);
  • no .02 agreement between the Intoxilyzer 8000 breathalyzer test; or
  • one of the BAC tests is under .08 (even if the other is over .08).

Even if the suspension isn’t invalidated, the criminal defense attorney gets the opportunity to question under oath each of the witnesses in the case before the prosecutor even sees the file. DUI defense attorneys win cases during pre-trial motions or at trial because of something that occurred at the formal review hearing. If you don’t conduct the formal review hearing, then you have lost all of those opportunities.

In these types of cases, there is NO real downside to demanding the formal review hearing:

  1. If your client has a prior conviction or administrative suspension for DUI (in that case the client is not even eligible for a “waiver review hearing”);
  2. If your client had one breath test reading over .08 and one below .08 (because the suspension must be invalidated); or
  3. If your client doesn’t need to drive in Florida during those 30 or 90 days when the hard suspension would be in effect (for instance, if the person has an out of state driver’s license, then the out of state license can be used to drive outside of Florida during the hard suspension period).

Even if the person has an out of state license, they still need to contest the administrative suspension. Living out of state doesn’t change the fact that your client will have to get the administrative suspension cleared in Florida if it doesn’t get invalidated at the formal review hearing.

Step One – Request the Formal Review Hearing at the DMV within 10 Days

The driver has 10 days after receiving the notice of suspension (which is usually included in the DUI citation given to the driver after the arrest) to demand a formal review hearing. If the license is valid when you make the request then you should immediately receive a 42-day permit that will let your client drive for hardship purposes while you are waiting for the hearing.

To request the formal review hearing you should fill out the Application for FRDLSD form (HSMV 78065 S (8.09)) and check the box to request a formal review hearing instead of an informal review hearing. You also need to attach a legible copy of the DUI citation that operates as the notice of suspension and a check for $25.00 made payable to the “Department of Highway Safety and Motor Vehicles.”

We also include a cover letter requesting a copy of the packet submitted by law enforcement and any other documents the hearing officer intends to introduce at the hearing. The cover letter should also request either a one hour or two hour time allotment for the hearing. [The hearing officer will schedule the hearing for one hour even if you request more time, but the request for extra time might come in handy if you have a lot of witnesses or a long video and end up asking for extra time during the hearing.]

In the cover letter, you can also request specific dates or times for the hearing near the end of the 30 day period. The hearing officer might schedule the hearing on one of the dates and times you suggested which gives you a lot more control over your calendar.

It is probably best to hand deliver the documents to the Bureau of Administrative Reviews so that you can obtain the 42 day permit the same day. The 42-day permit allows the driver to drive for business purposes only. Our office has a courier hand deliver the documents and then pick up the 42-day permit at the same time.

If your client needs the 42-day permit, it is probably a good idea to check that the driver’s license is valid before you make the request. For instance, if the driver has a suspension for an unpaid civil ticket you can probably get that issue cleared up within the 10 days so that your client is eligible for the 42-day permit when you make the request.

If the license is not otherwise valid and you can’t get the issue cleared, then you should still demand the formal review hearing (but you will probably not receive the 42-day permit).

In a few cases, I have seen the person make the request a few days outside of the 10 days (usually because of a notice issue). In many of those cases, at least in the Tampa BAR, the DHSMV will accommodate the demand for a formal review hearing requested outside of the 10 days but they will refuse to issue the 42-day permit.

Can the driver change his or her mind about a formal review hearing? If the driver already applied for a Review Waiver Hearing and obtained hardship reinstatement, then the DHSMV will probably take the position that the driver cannot then request a formal review hearing (even if still within the 10 days) although that is not a well-settled issue under Florida law.

If the client had a waiver review hearing but hasn’t yet obtained the hardship reinstatement, then the DHSMV will probably honor the request for a Formal Review Hearing made within the 10 day period.

Step Two – Receiving the Notice of the FRH and the Driver’s Pre-hearing Statement

If you make the demand for a formal review hearing within the 10 days after the arrest (or notice of the administrative suspension) then the hearing officer will send you a notice of the time and place for the Formal Review Hearing and a form called the driver’s “pre-hearing statement.”

In our cases, the Bureau of Administrative Reviews (BAR) will write the copy costs on the notice. We then write a check for that amount and pick up the packet of documents to be introduced at the hearing which are submitted by the arresting agency.

Under Florida Statute Section 322.2615(2) the arresting officer has 5 days after issuing the notice of suspension, to submit the following documents to the DHSMV: 

  1. the driver license;
  2. an affidavit stating the officer’s grounds for belief that the person was DUI;
  3. the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit;
  4. the officer’s description of the person’s field sobriety test, if any; and
  5. the notice of suspension.

The statute also provides that the hearing officer can still consider any documents submitted late as long as they are received “at or prior to” the hearing.

You need the DMV packet in order to know how to fill out the pre-hearing statement. You only have 10 days to submit the pre-hearing statement from the day of the notice. Sometimes there is a delay in getting the notice in the mail which cuts into the 10 days to submit the pre-hearing statement.

We always submit the pre-hearing statement within the 10 days and keep a blank copy of it for our records. If it needs to be updated before the hearing then an amended pre-hearing statement can be submitted after the 10-day deadline but before the hearing. Just write “amended” at the top and add the new information.

If the DMV doesn’t have the packet by the start of the hearing, then you should move to invalidate on that basis and the request to invalidate should be granted since there is no information in the record to uphold the suspension. If the packet suddenly appears on the day of the hearing (or too late to get the subpoenas issued), then you can request a continuance showing your efforts to obtain the packet ahead of time. It is best to arrive at the hearing with a written request to continue already prepared but wait to file it until after you read the packet to make sure the evidence in the packet is sufficient to uphold the suspension.

If you end up requesting the continuance, the hearing officer should issue you an extended 42-day permit since the delay was not caused by the driver. Ask for the extended permit in the written continuance request.

Before the hearing, you can also request many of these documents from the arresting agency although they might refuse to release them before the state has complied with a discovery demand. At a minimum, you can always obtain a copy of the citation and a crash report (if any).

Getting the DUI video ahead of the hearing is more difficult. In some cases, you might want to continue the hearing until after you are able to obtain the video. The hearing officers in Tampa will usually let us subpoena the custodian of records from the agency holding the video to bring it to the hearing since the arresting officer will often complain that he or she is not the “custodian” of the video. Once the custodian is served with the subpoena, the custodian will usually release it immediately to the attorney to avoid attending the hearing (or at least they become more accommodating).

We are usually able to get the video from the State Attorney’s Office right before the formal review hearing, but we make the request for the video immediately after we are retained. As a practical matter, you are not going to play the video at the hearing unless it is helpful to your case or impeaches the officer’s testimony (but you won’t know that until you watch the video).

Step Three – Completing the Pre-Hearing Statement and Subpoenas

Review the packet carefully. You should also compare any documents in the packet with any documents in the discovery.  Then go through the packet to identify any witnesses that you want to testify at the hearing and list them on the pre-hearing statement.

You also need to prepare a subpoena for each witness either with or without a subpoena duces tecum. Read more about the subpoena duces tecum at the DUI BAR formal review hearing.

At least in the Tampa Bay area, if the hearing is being conducted in a county outside of the county where the arresting agency is located then the BAR will schedule a telephonic formal review hearing after the DUI arrest.

In most cases, you will prepare a subpoena for each witness identified in the packet unless you have a really good reason not to subpoena that witness. [If the information in the packet is insufficient to uphold the suspension then you certainly don’t want to subpoena the witness who can fill in the missing information.]

Witnesses that can be issued a subpoena include:

  • the officer that conducted the initial stop of the vehicle;
  • the arresting officer;
  • any backup officer listed in the reports;
  • the breath test operator (in Hillsborough County, the breath test operator will be listed in the report as a witness to the refusal and can be issued a subpoena to the hearing even if it is an alleged refusal case);
  • the agency inspector (in a breath test case);
  • in a blood test case, subpoena any listed witness to the blood draw, the person withdrawing the blood and the crime laboratory analyst at the FDLE Toxicology Section (for FDLE you must include FDLE number, the submission number, and the agency number).

Step Four – Obtain and Serve the Issued Subpoenas

Take the pre-hearing statement and subpoenas to the Bureau of Administrative Review (BAR) and the hearing officer will issue the subpoenas by stamping and signing the subpoenas the same day.  Then have your process server go ahead and serve each subpoena.

After obtaining the issued subpoenas but before serving it on the witness you must serve the prosecutor assigned the case, or the State Attorney’s Office if a prosecutor is not assigned, with notice of the hearing and a copy of the issued subpoenas. Under the rule, the notice and copies of the subpoena should be received by the State Attorney’s Office prior to the issued subpoenas being served on the witnesses. Most attorneys probably just mail them a copy of the subpoenas with a cover letter, although it is not clear that this procedure would strictly comply with the very specific notice requirements in the statute.

To comply with this notice requirement, we have found a very quick and easy way to accomplish this task. We prepare a “Notice of Filing” in the criminal case that is instantly served electronically on the State Attorney’s Office via electronic service. Then you can just print out the confirmation that the filing was received with a submission date and time. The Notice of Filing just informs the prosecutor that the formal review hearing has been scheduled and that the attached subpoenas have been issued. Then attach a copy of each subpoena to the Notice of Filing.

Although I invite the prosecutor to attend each time and give them a copy of each subpoena, I’ve never had a prosecutor attend a formal review hearing.

After notifying the State Attorney’s Office of the subpoenas, serve the subpoena on each witness with a $5.00 witness check. The officer is also entitled to be reimbursed for mileage if requested so bring a separate check to the hearing for that purpose. If they tell me their mileage on the record during the hearing and ask for a bigger check then I am happy to whip out the check and write it for the requested amount.

If the subpoena includes a subpoena duces tecum then serve a separate check for reasonable costs to provide a copy of that evidence. You can make that check out to the agency.

If the witness fails to bring the items listed in the subpoena duces tecum then move to continue the hearing so that you have time to file a motion to compel compliance with the subpoena in the courtroom where the criminal case is pending. Or alternatively, if the officer claims no longer to be in possession of the item and denies being the “custodian of the record” then find out who is and request a subpoena duces tecum for that person.

For the agency inspector, our office also includes a public record request for the same documents requested in the subpoena duces tecum so that the Agency Inspector will also bring you a copy that you can take with you after the hearing or a copy that can be submitted into the record. You should bring a check to the hearing to pay for the public record request which is usually only a few dollars. Otherwise, just be aware the agency inspector may object to giving up the documents he brings and different hearing officers have different ways of resolving the issue.

Step Five – Attend the Hearing

The only thing left to do is attend the hearing. The most likely reason that you might win the hearing is because the arresting officer or breath test operator fails to appear.

If the arresting officer or the breath test technician fails to appear – then call the witness to testify. “At this time, I would call [name of witness] to testify.” When the hearing officer puts on the record that the witness is not present, then hand the hearing officer proof that the subpoena was served and ask to have that document admitted into the record as “driver’s exhibit #1.” Be prepared to show proof that you paid the witness fee and notified the prosecutor of the subpoena.

Then move to invalidate under Section 322.2615(11), Fla. Stat., which provides, in pertinent part:

If the arresting officer or breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.

Although the statute does not provide for any discretion for the hearing officer to determine whether the absent witness has “just cause” for the absence, the administrative rules contradict the statute.  The hearing officer will often ignore the plain language of the statute and rely on the administrative rule which provides:

15A-6.015 Failure to Appear.

…(2) …a properly subpoenaed witness who fails to appear at a scheduled hearing may submit to the hearing officer a written statement showing just cause for such failure to appear within two (2) days of the hearing.

(a) For the purpose of this rule, just cause shall mean extraordinary circumstances beyond the control of the driver, the driver’s attorney, or the witness which prevent that person from attending the hearing.

(b) If just cause is shown, the hearing shall be continued and notice given.

(c) No hearing shall be continued for a second failure to appear.

(d) Notification to the department of a witness’s non-appearance with just cause prior to the start of a scheduled formal review shall not be deemed a failure to appear.

(Emphasis added).

So the driver should take the position that the plain language of the statute clearly requires invalidation regardless of any contradictory procedure “deemed” in the administrative rule.

The hearing officer will want you to waive that issue by telling you that you should ask for a continuance. Don’t do it. Instead, object that even under the hearing officer’s reading of the administrative rule, no “just cause” has been shown for the continuance and move to invalidate on that basis. Then agree to attend any continued hearing. Renew the objection and request to invalidate on that basis at the end of the continued hearing.

Note on the record any other time the hearing officer violates the procedural rules and explain how that due process violation caused prejudice to your client and move to invalidate on that basis.

Also, to preserve any issues in the case make a motion to invalidate on the basis that the record contains insufficient evidence of one of the issues included in the scope of the review and explain why.

It is also helpful to bring a copy of Section 322.2615 and the 15A-6 administrative rules to the hearing with you in case any unexpected issues arise. In a Breath Test case, bring the Chapter 11D-8, Florida Administrative Code.

Step Six – Considering Filing a Writ of Certiorari

If you don’t win the hearing, but should have won the hearing, then consider filing a writ of certiorari to the circuit court. In addition to the attorney fees for the writ (we typically charge $2,500 in attorney fees), the client needs to pay for the transcript from the hearing and a $400 filing fee. The writ must be filed within 30 days of the date on the order so you don’t have much time.

Within 7 days of the order, you can ask the DHSMV to reverse course under the 21 day safe harbor provision of Florida Statute 57.105, but you must strictly comply with the notice requirement. In this letter to the hearing officer, explain why the department’s position is not supported by the law or the facts and give the department 21 days to correct the action before you file the writ.

Winning the writ is much cheaper for the client than living with the administrative suspension on their driving record for the next 75 years so be sure to review any options to have to file a writ with the client.


Let us know your tips for the formal review hearing. Add a comment below…

Florida’s FDLE Alcohol Testing Program – Don’t Follow the 11D-8 Rules? Rewrite the Rule. Repeat.

“Only sometimes when we pick and choose among the rules we discover later that we have set aside something precious in the process.”

– Helen Simonson, Major Pettigrew’s Last Stand

Matthew Malhiot recently wrote an article discussing how the Florida Alcohol Testing Program (ATP) violated Chapter 11D-8 F.A.C. rules when it failed to conduct department inspections after the Intoxilyzer 8000 breath test machines were “returned from an authorized repair facility.” The article is entitled “Florida-ATP Violates Chapter 11D-8 F.A.C. Rule.”

Matthew Malhiot was essentially the number three guy in FDLE-ATP – right behind Laura Barfield and Roger Skipper. Now he testifies as an expert witness or consultant in DUI motion hearings and trials. Laura Barfield also started a consulting practice and testifies for criminal defense attorneys.

The History of Chapter 11D-8, F.A.C., Revisions for Florida’s Intoxilyzer 8000

The article discusses the history of how the Chapter 11D-8 F.A.C. rule was revised in March of 2006 during the time that FDLE was going from the Intoxilyzer 5000 to the Intoxilyzer 8000. The revisions created two important problems that later arose.

Back in March 2006, during the time that FDLE-ATP was transitioning from the Intoxilyzer 5000 to the Intoxilyzer 8000, the rules were revised. After the revisions the rules required that the machine MUST have a department inspection completed after it was returned from an authorized repair facility.

Matthew Malhiot explains that the reason for conducting the department inspection after the machine was returned to the agency after repairs was that the process of shipping the machine could cause additional problems that could be detected during the department inspection.

At first, FDLE – ATP complied with the rule for the Intoxilyzer 8000 inspections. After all, the rule set in place a mandatory procedure that demanded that the department inspection MUST be conduct at the agency after the machine was returned from repair.

In the article, Matthew Malhiot makes that point that during that time, Department Inspectors were constantly traveling throughout Florida to conduct these department inspection at the agency. Matthew Malhiot should know exactly how the rule was being followed since he was one of those Department Inspectors traveling all around Florida to the county and city agencies diligently conducting Department Inspections.

Matthew Malhoit explains in the article that there were times that after the machine was shipped back to the agency from the repair facility that the machine would fail the department inspection. That failure would require the machine to be sent back to the repair facility for more repairs. He explains that the machines can and do sometimes break during shipping. The machines are often sent by common courier such as UPS.

Then in 2010, the FDLE-ATP decided to enact a new procedure. The new procedure had nothing to do with ensuring the accuracy or reliability of the machine. Instead, it was designed as a cost saving measure. Under the new procedure, after a repair the machine would be boxed up and sent by common courier to FDLE in Tallahassee where the repairs would be performed.

Then after the repairs, the Department Inspector would conduct the Department Inspection at FDLE instead of back at the agency. This new procedure saved money for two reasons. First, FDLE-ATP no longer had to send the Department Inspectors throughout the State of Florida. Instead, all of the Department Inspectors could work from one location and fewer department inspectors would be needed.

Secondly, the plan was for all of the repair to be made by the FDLE-ATP Department Inspectors instead of paying more money to have the repairs made by CMI, Inc., in Owensboro, Kentucky, or another repair facility such as Enforcement Electronic Services, Inc.

Many estimate that CMI, Inc., makes most of its profits from the “cost of labor” required for repairing the machine. For instance, when a battery has to be replaced, the machine was designed so that the battery was placed in a very inconvenient place that required the much of the machine to be taken apart to get to it. So CMI, Inc., certainly didn’t mind Florida boxing up the machines and sending them their way every time a repair was needed.

in 2010, FDLE-ATP put one part of the new cost-saving plan into place under the leadership of Laura Barfield. This first step involved relocating all of the Department Inspectors to Tallahassee. According to Matthew Malhiot, the second part of the plan was never fully implemented because the machines were still being sent for repairs at CMI, Inc, or Electronic Enforcement Services, Inc.

Violations for Not Doing Department Inspections at the Agency after Repairs

Matthew Malhiot’s article explains that between 2010 and July 29, 2015, “FDLE-ATP had NOT been complying with the rule which required that a department inspection be completed at the agency, upon the return of a machine from an ‘authorized repair facility.’”

Several different courts across the State of Florida started issuing rulings finding problems with compliance and that the problems were substantial. Only after those rulings did the FDLE-ATP dispatched a Department Inspector to each law enforcement agency, in the Florida Panhandle, to do the department inspections at each agency.

FDLE-ATP is not an “Authorized Repair Facility”?

As the pressure began to mount, FDLE just decided to change the rule. As of July 29, 2015, the FAC rules no longer define FDLE-ATP as an “authorized repair facility.” Therefore, after July 29, 2015, when a machine is shipped from FDLE back to an agency, it would no longer be required to complete a department inspection at the agency.

But didn’t that solution just create a more serious problem? If FDLE is no longer an “authorized repair facility” then how in the world are they going to save all that money by doing the repairs in Tallahassee instead of paying the repair facilities for the “cost of labor.” And what about those pending cases that involved FDLE-ATP actually repairing the machine?

No worries – FDLE also changed the wording in the rule from “repair” to “maintenance.” So we can expect the FDLE-ATP employees to around the state to start telling judges that the “repairs” are really just “maintenance.” Judges will be expected to bend over backwards to participate in this exercise in verbal gymnastics.

Matthew Malhiot makes the point that repairs would include such things as replacing batteries, replacing breath tubes, and replacing dry gas regulators. These are repairs and not simply maintenance because if a piece of the machine is broken and replaced then it is necessarily a repair. He gives the following example:

“When a breath tube is broken, the machine is NOT functional; therefore, a “repair” is required, in order for the machine to operate properly, allowing it to be placed back into service. Let’s look at some examples of what “maintenance” on an Intoxilyzer machine is.  If the machine’s external “O” rings need changing, or say, the breath tube screen needs cleaning; that would be considered “maintenance”.

Nothing was broken on the Intoxilyzer, and they were simply maintaining the machine.  Consider this, you have the oil changed in your car, would it not be considered “maintenance”?  On the other hand, if the alternator on your car went out, you would most certainly need it “repaired”, in order for the car to function again.”

So the next round of motions begin as attorneys fight to have their client’s breath test excluded because a department inspection was not conducted at the agency after the repair and/or maintenance was performed.

Those who drafted the wording of the rule changes did a really bad job. When you change one rule it changes everything about the entire scheme – and the people who drafted these latest changes didn’t do a very good job at recognizing all the new problems that were created.

Intoxilyzer 8000 Problems in Florida

What did New Port Richey Police Chief Kim Bogart Say About Covering Up Driving Drunk to a Traffic Homicide Investigation?

So the media has completely ignored the fact that the New Port Richey Police Department tried to cover up a detective driving drunk in his agency vehicle to a traffic homicide investigation – everyone except Mike Deeson with WTSP 10 News.

Read the story here – Chief Kim Bogart on why New Port Richey Police Did Not Arrest a Detective For Drunk Driving

NPR Police Chief Kim Bogart actually sat down with Mike Deeson for an interview. And what did he say? He says Denton never should have driven from his Wesley Chapel Home to the crash scene. Chief Kim Bogart explained, “When he arrived on the scene other officers noticed he had an odor of alcohol about his breath and he was unsteady.”

According to Chief Bogart, “In this particular case, it was a very good officer, well respected in the department, very hard working, and he made an egregious error.”

The bigger error was Chief Kim Bogart condoning the fact that his officers engaged in a cover up. Several officers saw Christopher Denton driving and behind the wheel. Several officers said he was obviously impaired. Several officers made sure that it was covered up.

When the reporter asked the chief, “Wasn’t there probable cause? Didn’t he get a break by not just charging him instead of ordering him to take the [administrative] breathalyzer?”

Chief Kim Bogart responded, “I’m not going to second guess my field commander for the decision he made. When he told me what he did I told him that was absolutely the right decision.”

The right decision? Absolutely the right decision?

Why hasn’t the State Attorney’s Office in Pasco County taken any action? What did the State Attorney’s Office know and when did they know it? And why did they hide it from every criminal defense attorney in town? It wasn’t until after Mike Deeson ran the story that I finally got a Brady Notice informing me of the IA investigation into Denton’s misconduct.

The State Attorney’s Office did not include the IA investigation with my one page Brady Notice – but you can read it here – New Port Richey IA report from the Christopher Denton case.

What is the State Attorney’s Office suppose to do when Chief Kim Bogart says it is the “right decision.” Isn’t an outside agency suppose to review it? So who else should take action if the State Attorney’s Office and the Police Chief do nothing?

Read more about the Corrupt Investigation of a New Port Richey Police Department Detective Allegedly Driving Drunk to a Roadside Investigation.

Find DUI Defense Attorneys in New Port Richey, FL.

Problems with the Intoxilyzer 8000 and Inspections with Unapproved Solutions

In State v. Larking, 23 Fla. L. Weekly Supp. 271b (August 10, 2015), the Honorable Margaret R. Taylor, Judge in Tampa, Hillsborough County, granted a motion filed by Eilam Isaak, Isaak Law, PLLC, Tampa.

The issue in the case was whether the breath test results should be suppressed when the machine was inspected with unapproved solutions. The court found that the administrative rules requires that a minimum of ten bottles from a lot of alcohol reference solution be tested two times yielding twenty test results.

Within that test, all of the results must be within acceptable range for the lot to be approved for use. When use of solution from a lot in which first testing yielded one in twenty results outside of acceptable range and the second testing on the next day yielded forty results all within acceptable range, the requirement that inspectors use only approved solutions was violated.

Although FDLE alcohol testing procedures allows retesting of solution, those procedures are in conflict with and are subordinate to the administrative rules that requires that all results fall within acceptable range.

Therefore, the rules do not permit retesting under these circumstances. As a result, the motion to suppress the breath test results for violation of Florida Statute 316.1932, FDLE Rule 11D-8.0035, and FDLE Rule 11D-8.002(1), from the Intoxilyzer 80000 machine inspected with unapproved solution was granted.

In that case the court found:

THIS CAUSE having come before this court upon the defendant’s filing motions to suppress the breath test results, having heard live testimony on June 8, 2015, having considered exhibits entered into evidence, and having heard arguments of counsel, grants the motions to suppress for the following:

The defense filed identical motions in each case for which all of the testimony, exhibits, and arguments apply equally to both. The only exception is that each defendant’s record includes his own individual breath test affidavit (entered as defense exhibit # 1). For convenience, the remaining documentary exhibits were entered into evidence under the case number for [the defendant].

The State called as it’s witnesses Roger Skipper (the agency inspector for the Hillsborough County Sheriff’s Department), Patrick Murphy (program manager for the alcohol testing program at FDLE), and Dan Richardson (forensic toxicologist from the FDLE crime laboratory).

The defense entered into evidence the following exhibits:

Defense Exhibit # 1 breath test affidavit

Defense Exhibit #2 a 6 page compilation of Intoxilyzer 8000, serial number 80-000833 documents. Pages 1 and 2 are login sheets showing who logged in and entered into password protected areas of the breath machine and on which dates. Page 3 is the instrument processing sheet from FDLE confirming that the breath machine was sent to FDLE and inspected in September 2013. Page 4 is the department inspection results form from the September 2013 FDLE inspection showing that alcohol reference solution lot # 201302B was used during the inspection. Pages 5 and 6 are monthly inspection reporting forms for inspections performed by Roger Skipper for October and November 2013 pursuant to FDLE Rule 11D-8.006 which also show that alcohol reference solution lot # 201302B was used during the inspections.

Defense Exhibit #3 a 10 page compilation of FDLE documents related to the approval of alcohol reference solution 201302B. Including the certificate of assurance, correspondence, and approval testing data by Dan Richardson.

Defense Exhibit #4 a copy of the current FDLE 11D-8 rules (defense counsel on 2 occasions miss-identified this exhibit as #6).

Defense Exhibit #5 a copy of the FDLE alcohol testing procedures manual (2014 version) — [this exhibit was marked but not admitted]

Defense Exhibit #6 a copy of form 39 and form 40

Defense Exhibit #7 a copy of form 36 and form 41

Defense Exhibit #8 a copy of the FDLE alcohol testing procedures manual (2011 version)

The live testimony and exhibits established the following facts: [The Defendant] was arrested for DUI on December 31, 2013. After his arrest, he submitted to a breath test on intoxilyzer 8000, serial number 80-000833. [The second Defendant] was arrested for DUI on November 23, 2013. After his arrest for DUI, he also submitted to a breath test on intoxilyzer 8000, serial number 80-000833.


Mr. Skipper’s testimony established the following facts. He is the Hillsborough County agency inspector and is required to conduct inspections every month on the breath machines pursuant to FDLE Rule 11D-8.006. He is required to follow the procedures set out in form 39 and report the results of his inspections on form 40. Along with other procedures required by form 39, he runs analysis of alcohol reference solutions at pre-determined concentrations of alcohol at 0.05, 0.08, and 0.20 levels. He is only permitted to use alcohol reference solutions which are approved pursuant to FDLE Rule 11D-8.0035. If he uses unapproved solutions, it would be a violation of the applicable administrative rules.

When Mr. Skipper prepares for his inspections, he relies upon information on the FDLE website to verify the approval of the alcohol reference solutions he uses. He identifies them by lot number.

Mr. Skipper tested the intoxilyzer used for both defendants in October, November, and December of 2013. During the October and November 2013 inspections, Mr. Skipper used an 0.05 alcohol reference solution with a lot number of 201302B.

Mr. Skipper testified that during his inspections, he is required to obtain results that are within allowable tolerances at the specified concentrations. If he obtains an out of tolerance result, he is permitted by form 39 to retest one (1) time per concentration. The authority for this retesting is specifically contained within form 39.


Mr. Richardson testified that he has been employed with FDLE for 16 years. The past 13 years as a forensic toxicologist lab analyst in the crime lab section. Mr. Richardson is not part of the alcohol testing program, nor is the crime lab section of FDLE. The alcohol testing program is a separate section.

He was requested to assist the alcohol testing program with the testing of the alcohol reference solutions as a result of the departure from it by it’s former program manager, Laura Barfield in March 2013 because no one was qualified to do the approval testing. Prior to Ms. Barfield’s departure, she was the person responsible for the approval testing of the alcohol reference solutions pursuant to FDLE Rule 11D-8.0035. Once she left, the responsibility for the approval testing fell upon Mr. Richardson. Mr. Richardson was requested by his supervisor to perform the approval testing of the alcohol reference solutions until Ms. Barfield’s replacement for this process could be selected. Mr. Richardson was provided a copy of section 2.14 from the FDLE alcohol testing program procedures manual to guide him as to how to complete the required procedure for the approval testing of the alcohol reference solutions.

Mr. Richardson explained that he tested alcohol reference solution with lot number 201302B on April 16, 2013. He tested 10 bottles in duplicate as required. He obtained 20 results. Mr. Richardson agreed that per FDLE Rule 11D-8.002(1) & FDLE Rule 11D-8.0035, all the results of his analysis were required to fall within 0.0605 g/100mL and 0.0623 g/100mL. Mr. Richardson then testified that one (1) of the results was out of tolerance. Bottle # 1669 on it’s second analysis registered a result of 0.0627. Consequently, Mr. Richardson retested the lot number the following day (April 17, 2013). He again tested 10 bottles in duplicate, and obtained an additional 20 results. This time, all of the results fell within required tolerances.

On cross examination, Mr. Richardson conceded that over the two (2) days, he tested 10 bottles and obtained 40 results. One of which was out of tolerance. He further conceded that not all of his results were within the required tolerance of FDLE Rules 11D-8.002(1) &11D-8.0035.

Mr. Richardson apparently made no attempt to investigate why he obtained an out of tolerance result on the first date of analysis. His explanations were speculation. Mr. Richardson made the decision to retest the lot number on his own without first getting permission from Patrick Murphy. Mr. Richardson testified the procedure he was provided (2.14) permitted him to retest. When confronted with FDLE Rule 11D-8.0035, Mr. Richardson conceded that the rule did not authorize the retesting of the solution, rather the rule required that all of the results fall within allowable tolerances. Mr. Richardson conceded that that did not happen.

When questioned about compliance with the procedures set out in section 2.14 of defense exhibit #5 (the FDLE alcohol procedures manual — the 2014 version), Mr. Richardson agreed that he did not follow them. Based upon his testimony, it became apparent that a different version of the section had been provided to him. At this point, the defense produced an earlier version of the manual from 2011 and was marked and admitted it as defense exhibit #8. Mr. Richardson again agreed that he did not follow the procedures set out in section 2.14 of the 2011 version and again testified that he had a different version. Later in the hearing during the testimony of Patrick Murphy, Mr. Murphy was also shown defense exhibit #8 and confirmed (contrary to Mr. Richardson’s testimony) that this was the procedure that Mr. Richardson had been provided and was required to follow when he tested lot number 201302B.

It was abundantly clear from Mr. Richardson’s testimony that he did not follow the procedures set out in section 2.14 by not complying with the parameters for the gas chromatograph and by failing to determine the cause for the outlier.


Mr. Murphy testified that he has been employed with the alcohol testing program with FDLE for the past 8 years. He has been the program manager for the last 2.

Mr. Murphy outlined his educational experience to include 4 bachelor of sciences degrees, 4 master of sciences degrees, and a PHD. On cross examination, he explained that 1 of his master’s degrees is in forensic toxicology and another masters is in forensic science. He obtained these degrees online without any participation in laboratory work. The remainder of his degrees are non science related.

Mr. Murphy further conceded on cross examination that he personally does not conduct the approval testing of the alcohol reference solutions because he does not feel comfortable performing it. He explained that he does not have the necessary hands on experience required since these solutions are used for evidential purposes.

Mr. Murphy inherited the current FDLE Rules when he took over as the program manager. He is currently in the process of re-promulgating the rules but in March of 2013 (at the time of the approval testing of the alcohol reference solution lot number 201302B), the applicable rules were the current version admitted as defense exhibit #4.

When asked by the defense, he agreed that pursuant to FDLE Rule 11D-8.0035, a minimum of 10 bottles of alcohol reference solution has to be tested in order for a lot number to be approved. More than 10 bottles can be tested but not less. Less than 10 would be a violation of the rule. Each bottle of alcohol reference solution has to be tested in duplicate producing a minimum of 20 results. More than 20 results is ok but less than 20 results would be a violation. He also agreed that the promulgated rule (11D-8.0035) requires all the results fall within allowable tolerances as defined in FDLE Rule 11D-8.002(1).

Mr. Murphy testified that in March of 2013, Mr. Dan Richardson was asked to perform the approval testing of lot #201302B of alcohol reference solution. Mr. Richardson began the testing on April 16, 2013, and retested the solution on April 17, 2013. Mr. Richardson tested 10 bottles in duplicate and because he obtained a result outside of tolerance on April 16th, he retested the 10 bottles the following day. Upon obtaining 20 results on April 17, 2013, Mr. Richardson completed his approval testing of lot #201302B. Based upon the April 17th testing, Mr. Murphy testified that he approved lot #201302B for use in the State of Florida. It is interesting to note that page 3 of defendant’s exhibit #3, a letter dated April 23, 2013, to Mr. Christopher Wilson from Alcohol Counter Measures (the manufacturer of the alcohol reference solution) states that the approval testing performed on April 16, 2013, was the analyses used to approve lot number 201302B (not April 17).

Mr. Murphy further agreed with the testimony of Dan Richardson that bottle #1669 tested outside of tolerance during the April 16th testing procedure. However, he disagreed with him regarding the procedure he was supposed to utilize for the approval testing. According to Mr. Murphy, Mr. Richardson was supposed to use the procedure from section 2.14 of the 2011 version of the FDLE alcohol testing program procedures manual.

Mr. Murphy further testified that the FDLE alcohol testing program procedures manual has never been promulgated as was FDLE Rules 11D-8.002(1), FDLE Rule 11D-8.0035, FDLE Rule 11D-8.006, or forms 36 and 39. Therefore, the failure to follow the sections of the manual is not a violation. However, the failure to follow the other formally promulgated rules would be.

Mr. Murphy when asked about FDLE Rule 11D-8.0035 agreed with the defense that it states that “all analyses shall fall within alcohol reference solution acceptable range”. He further testified that for lot # 201302B, that 10 bottles were tested yielding a total of 40 results, for which not all of the results fell within acceptable range as defined by FDLE Rule 11D-8.002(1).

Mr. Murphy was also questioned about FDLE Rule 11D-8.004 and form 36. Similar to FDLE Rule 11D-8.006 and form 39, he testified that the promulgated rule and form specifically state that if an out of tolerance result is obtained during the department inspection, a second analysis is permitted. And when asked about a comparison with FDLE Rule 11D-8.0035, he conceded that the rule does not permit reanalysis for an out of tolerance result for the alcohol reference solution testing. The only source for that procedure is the unpromulgated procedure in section 2.14 of the FDLE alcohol testing program procedures manual.

The defense questioned Mr. Murphy about a September 2013 department inspection that had been performed on the breath machine in these cases. Mr. Murphy acknowledged that lot number 201302B was used during that inspection and that the September department inspection was required by rule to place the breath machine back into evidential use.

Mr. Murphy next testified about the FDLE website and that there is a substantial number of documents on the site. The defense suggested in excess of 1 million but Mr. Murphy felt that 500,000 would be a better estimate. Mr. Murphy shouldered the responsibility of not telling the State Attorney’s office or the Hillsborough County Sheriff’s Department about the out of tolerance result for lot number 201302B. He agreed that he never sent out a Brady notice to either the agency inspectors or the State Attorney’s office because he felt that the lot number was properly approved and that there was no need to advise them of such.


The defense is asking this court to suppress the breath test results because unapproved alcohol reference solutions were used in both the September 2013 department inspection as well as the monthly agency inspections. The State argues in the opposite and asks this court to find that FDLE properly approved lot number 201302B. For the following reasons the motion is granted.

FDLE Rule 11D-8.004 requires a department inspector to follow form 36 and FDLE Rule 11D-8.006 requires an agency inspector to follow form 39. Both of these forms state that only approved alcohol reference solutions may be used during the inspection process. Using non-approved solutions would be a violation. State of Florida v. Booth, Case No: 00-1974 (13th Cir. 2002), State v. Waters, Case No: 418211W (13th Cir. 2000).

In order to approve a lot number of alcohol reference solution, FDLE must comply with FDLE Rule 11D-8.0035. The rule requires a minimum of 10 bottles be tested in duplicate producing at least 20 results, all of which must be with acceptable range as defined by FDLE Rule 11D-8.002(1).

The evidence in this case establishes that FDLE performed it’s first analysis on lot number 201302B on April 16, 2013. It tested 10 bottles. That was compliant with FDLE Rule 11D-8.0035. It also tested it in duplicate, and that was also compliant with FDLE Rule 11D8.0035. But when one (1) result tested outside of acceptable range (bottle 1669 with a result of 0.0627), lot number 201302B was in non-compliance.

Since the promulgated rule (11D-8.0035) requires that all results fall within acceptable range as defined by FDLE Rule 11D-8.002(1), and not all of the results were within the acceptable range, FDLE should not have retested the solution. Even though the procedure in section 2.14 of the FDLE alcohol testing program procedures manual permits retesting, since the promulgated rule apparently does not, FDLE was precluded from reanalyzing it.

The State argues that FDLE was permitted to reanalyze the solution per the FDLE alcohol testing program procedures manual, the defense on the other hand argues that the promulgated rule (11d-8.0035) prohibits re-analysis. The issue is resolved by the FDLE procedures manual. On page 2 of the FDLE alcohol testing program manual, it states that the purpose of the manual “is to document the procedures of the Florida Department of Law Enforcement alcohol testing program. It is not intended to supersede, and when in conflict, is subordinate to, information and processes in the Florida Statutes, Florida Administrative Code, or FDLE policies and procedures”. Since FDLE Rule 11D-8.0035 requires all results to fall within acceptable range, this court finds that the promulgated rule and section 2.14 of the FDLE alcohol testing program procedures manual to be in conflict and therefore section 2.14 is subordinate to the promulgated rule (11D-8.0035) and therefore, retesting is not permitted since 11D-8.0035 requires all of the results must fall within acceptable range.

This court finds that based upon the testing completed on lot number 201302B, that 10 bottles were tested in duplicate on two (2) separate days, yielding a total of 40 results for which not all of the results fell within acceptable range. Therefore, lot number 201302B was not properly approved in accord with FDLE Rule 11D-8.0035 and the use of these non-approved solutions during the September department inspection or the monthly agency inspections in October and November violated forms 36 and 39, thereby rendering the results inadmissible.

In support of their positions, the defense provided this court with two (2) cases. State v. Booth, Case No: 00-1974 (13th Cir. 2002), State v. Waters, Case No: 418211W (13th Cir 2000). The trial court in Waters suppressed the breath test results for violation of FDLE Rule 11D-8.0035 when one (1) result for the alcohol reference solution fell outside of acceptable range during the approval process. State v. Waters, Case No: 418211W (13th Cir 2000). The court examined the language of the rule and determined that it did not permit FDLE to discard an outlier result. Id. The court found that all of the results of the analysis had to be considered. Id. The language of the version of the rule at issue in Waters is identical to the language of the current version of the rule at issue in these cases also. Therefore, this court finds that FDLE was not permitted to discard the outlier result for lot number 201302B. Id.

The decision in Waters was adopted by another trial court in Booth and then subjected to an appeal by the State to the circuit court. State of Florida v. Booth, Case No: 00-1974 (13th Cir 2002). In it’s appellate capacity, the 13th circuit court affirmed the decision finding that a violation of FDLE Rule 11D-8.0035 occurred. Id. A decision of the Circuit court acting in it’s appellate capacity is binding on all courts within that circuit. Fieselman v. State, 566 So.2d 768 (Fla. 1990), State v. Lopez, 633 So.2d 1150 (5th DCA 1994).

Therefore, this court finds that it is required to follow Booth. Fieselman v. State, 566 So.2d 768 (Fla. 1990), State v. Lopez, 633 So.2d 1150 (5th DCA 1994).

Since the State made no argument for substantial compliance, this court need not make any ultimate legal findings on this point of law. But, since the State is seeking further appellate review, it should be noted that the court in Waters as well as Booth found that the doctrine of substantial compliance did not apply to FDLE or rule 11D-8.0035. Had the State argued this point during the hearing, the court would have rejected the State’s position consistent with Waters and Booth. Id.

As for the defenses argument regarding the alleged Brady violation. This argument is obviously a reference to Brady v. Maryland, 373 U.S. 83 (1963). In order to prove a Brady violation, the defense has the burden to show that (1) favorable evidence either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) that because the evidence was material, the defendant was prejudiced. Beasley v. State, 18 So.3d 473 (Fla. 2009) [34 Fla. L. Weekly S439a] — see concurring opinion. And even though the court feels that a Brady violation probably occurred in this case, by granting the motion to suppress for violating FDLE Rule 11D-8.0035, the court does not have to go any further on this issue as it has been rendered moot.

For these reasons, the court grants the motion to suppress the breath test results.

* * *

What Happens at a Hardship Hearing with the Florida Bureau of Administrative Review in Tampa, FL?

I recently attended a hardship hearing at the Florida Bureau of Administrative Review office in Tampa, FL, in Hillsborough County. These hardship hearings can occur after an administrative suspension for a first DUI (either for 6 months or one year) or for a permanent lifetime revocation after a fourth DUI (or anything else in between).

I thought it might be helpful to share information with other criminal defense attorneys in Florida about what happens during a typical hardship hearing.

The goal of the hearing is obtaining a class C business purposes hardship license or a class D employment purposes hardship license. If you plan to attend the hearing with your client, it might be a good idea to go over the script with them ahead of time so they know exactly what to expect. Although an attorney can attend the hearing, the hearing officer will tell you not to make any statements or participate in the hearing once it begins.

The hearing officer will read from a script marked as “HSMV 78302 S” also known as the “Hearing Officer Report / Script.” According to the form, the script was last revised in October of 2006. During the hearing, the hearing officer will both read from the script and fill it out. That report will be placed in the subject’s file and it operates as a summary of what occurred at the hearing. The hearing itself is audio recorded.

So what happens after you request a hardship hearing?

The hearing officer will greet you and ask you to have a seat. The hearing officer will inform you that the hearing will be recorded before turning on the tape recorder.

After the recording begins, the hearing officer will read from the script:

I am ___[name of hearing officer], HSMV Field Hearing Officer. This hearing is regarding the suspension / revocation for ___[type of susp / rev]___, with effective date of _______, with an expiration date of ______.

During the opening remarks the hearing officer will say the following:

Your hearing today is an informal proceeding of an administrative nature, therefore, judicial procedures do not apply. Florida Statute 322.271 gives the department the authority to conduct your hardship hearing.

This hearing allows you and the department an opportunity to evaluate your driving record and to determine whether a hardship license should be granted.

Before we begin this hearing, I must place you under oath. Please raise your right hand. Do you swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth.

For the record, please state your full name, date of birth and your current address.

The hearing officer will then ask any witness, criminal defense attorney or interpreter in the room to identify himself or herself for the record.

Then the hearing officer will ask a series of questions so that he or she can fill out his report.

  1. What is your date of birth?
  2. What is your race?
  3. What is your sex?
  4. Are you married?
  5. If so, is your spouse employed?
  6. Are you a U.S. citizen?
  7. Do you have a license in your possession? [If so the hearing officer will ask you to turn it over since you are not supposed to possess a driver’s license if your driving privileges have been revoked or suspended.]
  8. Are you employed?
  9. What days do you work and what hours do you work on each day?
  10. What is your occupation?
  11. What is the name and address of your employer?

The hearing officer will then note whether he or she has checked the Commercial Driver’s License Information System (CDLIS) and Comprehensive Case Information System (CCIS), offered by Florida’s Clerks of Court.

The hearing officer will also note the following:

  1. number of previous hearings;
  2. number of previous conviction;
  3. whether a traffic crash occurred;
  4. number of previous suspensions; and
  5. number of previous revocations.

The hearing officer will then review the subject’s driving record and discuss both current and past violations on the transcript. The hearing officer will also inform the subject of the consequences resulting from future or similar violations (such as points, revocations, suspensions, or designation as a habitual traffic offender).

Out of State Revocation or Suspension Issues

In many cases, the subject might have another suspension or revocation in another state or country that is not showing up on the Florida driver’s license. If the subject does not want to disclose this information to the hearing officer, then he or she should not request a hardship hearing. In some cases, it might just be best to forgo the hardship hearing and just wait to reinstate the license until after the suspension is over.

Questions related to any out of state revocation or suspension would include:

  1. Have you ever been licensed in another state or country?
  2. If yes, what state or country were you in when the revocation or suspension occurred?

Be aware that if that revocation or suspension is not showing up on the driving record, then the hearing officer make take steps to request that the out-of-state revocation or suspension be added to the Florida driving record.

Revocations or Suspensions that are Alcohol-Related including DUI

For suspensions or revocations that are alcohol-related, the hearing officer will ask the following questions:

  1. Have you ever been convicted of an alcohol-related offense in any other state?
  2. Has your privilege to drive ever been suspended or revoked in any other state or country?
  3. If so, for what reason?
  4. Do you have any violations / convictions / revocations / suspensions that have not been mentioned?
  5. If so, what are they?
  6. Do you understand what caused the revocation / suspension of your driving privilege?
  7. Were you incarcerated as a result of this revocation / suspension of your driving privileges?
  8. If so, what was the date of your release? [For purposes of determining your eligibility for a hardship license, some time periods do not begin until after the subject is released from incarceration.]
  9. What did you learn in the ADI / DUI School?
  10. How can you prevent future violations from occurring? [Don’t drive without a license and don’t drink alcohol].
  11. What are your driving needs? [work, school, church, doctor, grocery store]
  12. How did you get here today? [The hearing officers will often watch everyone that pulls into the parking lot. If you drive to the hearing they will know. Don’t drive to a nearby parking lot and walk over. Do not drive to the hearing.]
  13. How many licensed drivers are in your household?
  14. How have your driving needs been met since your suspension / revocation?
  15. When was the last time you operated a motor vehicle? [If you have a permanent revocation and you drove on that revocation during the last five years then you are NOT eligible for a hardship. If you have a DUI suspension and drove during the suspension, then you will not be eligible for a hardship.]
  16. For what reason did you operate a motor vehicle?

At this point, the hearing officer might discuss any F.R. (financial responsibility) Suspension. The hearing officer might also note whether the subject has a good or bad attitude (so tell your client to have a “good attitude”).

The form also says “M/O’s (Multiple DUI Offenders) ONLY: When was the last time you consumed any type of alcoholic beverage or controlled substance?”

The bottom part of the form notes whether the D300 was issued, the date issue, who it was approved through, and whether the database was updated. The hearing officer will then note whether the person is eligible for:

C = Business Purposes
D = Employment Purposes
Y = Educational Purposes

The hearing officer will indicate whether the subject failed to submit. Whether the request was denied, the reason, and the reconsideration date.

The Hearing Officer will also talk with the subject about any requirement for the ignition interlock device and other conditions required by DUI special supervision services (if applicable).

The Hearing Officer will note whether the person has completed ADI, DUI School or another requirement, the completion date or the enrollment date. The bottom of the form also has a section for comment and the amount paid for the reinstatement or license fee. Finally, the form has a place for the hearing officer to sign.

Disclaimer: This article, written on Tuesday, August 11, 2015, explains what might happen at a hardship hearing for a business purpose class C or employment purpose class D hardship license at the Florida Bureau of Administrative Review office in Tampa, Hillsborough County, FL. Similar procedures might be used at the other BAR offices throughout the State of Florida including the Bureau of Administrative Review office in Clearwater, FL. This article is for educational purposes only. If you need legal advice, then seek out the services of a qualified DUI Attorney in Florida to discuss your case.

Florida’s Rule on Completion of the DHSMV approved 4-Hour Basic Driver Improvement Course

For certain types of traffic violations, Florida Statutes 322.0261 requires completion of a 4-hour Basic Driver Improvement course approved by the Department of Highway Safety and Motor Vehicles. You must take the course after a conviction for:

1. Highway Racing (as a driver or passenger); or

2. Reckless Driving.

You have to take the course even if the court never makes it a condition of probation. In fact, for some reason, the courts almost never make it a condition of probation.

After the conviction, the Florida Department of Highway Safety and Motor Vehicles will send a letter requiring the course within 10 days after receiving notice of judicial disposition, because their records show that the driver was convicted of a traffic violation that requires the BDI course pursuant to F.S. 322.026.

If you do not take the course then your driving privileges will be cancelled indefinitely. You will receive a order of license cancellation that says: “failed to complete basic driver improvement / a violation of 316.074(1) or 316.075(1)(c)1, 316.172, 316.191 or 316.192.

Reckless Driving Reduced from DUI

If the person’s DUI case is reduced to reckless driving then the 4-hour Basic Driver Improvement course is required. The BDI course is required even if that was not ordered by the court or negotiated with the prosecutor as a condition of probation.

Insurance Reduction

A person might also take a course on Basic Driver Improvement in lieu of receiving points on your driving record or to receive a discount on your insurance rates.

Finding a 4-hour Basic Driver Improvement Course in Tampa, FL

You can refer to your local telephone directory yellow pages under “Driving Instructions” or “Traffic School” to locate a Driver Improvement school that teaches Basic Driver Improvement courses in your area.

You can also take this course online by visiting http://www.flhsmv.gov/ddl/drivingcourses.html. When you enroll in the course let them know that you are registering for the class in order to comply with this requirement.

The DHSMV will not accept out of state schools to meet this requirement.

Additional Resources:

Florida’s Basic Driver Improvement Course – Visit the website of the Florida Department of Highway Safety and Motor Vehicles (DHSMV) to learn more about the approved 4 hour course for basic drive improvement.

This article was last updated on Thursday, March 31, 2016.

The Corrupt DUI Investigation of a New Port Richey Detective

On Wednesday, I was combing through records for the one-and-only Intoxilyzer 8000 breathalyzer that belongs to the New Port Richey Police Department (NPRPD). The Serial Number of the breath test machine is 80-001064.

As I was scrolling through the pages of breath test readings on the FDLE website, I came across a startling discovery – one of the NPRPD agency inspectors gave a breath test to another NPRPD agency inspector during the early morning hours of April 10, 2015. And the second agency inspector, Detective Christopher Denton, blew a .161 and a .151.

As I was scrolling through the pages of breath test readings on the FDLE website, I came across a startling discovery – one of the NPRPD agency inspectors gave a breath test to another NPRPD agency inspector during the early morning hours of April 10, 2015. And the second agency inspector, Detective Christopher Denton, blew a .161 and a .151.

I found that particularly interesting since I had both of the agency inspectors under subpoena for a hearing a few days later. The hearing was concerning my motion to suppress the breath test reading because of a lack of substantial compliance with the administrative rules. Were they conducting some kind of experimental testing on the machine?

I knew better because a few weeks before that I had learned that Christopher Denton, a Detective in the Criminal Investigations Unit, had been “involuntarily separated” from the NPRPD. I was told that a review and grievance request was pending. But no other information was provided to me.

I had already requested the Internal Affairs record from the State Attorney’s Office and the agency – and I was still waiting. But when I saw that breath test reading, I knew the reason that Detective Denton had been separated from his job.

The DUI Cover-Up and the Reveal

Only another DUI attorney can appreciate the irony of an agency inspector blowing over the legal limit on the Intoxilyzer 8000 that he maintains.

But anyone can appreciate the problem with a detective (and more specifically, a traffic homicide investigator) allegedly driving his agency vehicle to a traffic homicide investigation while impaired by alcohol. The deceased victim is still lying in the roadway. The other officers have to stop what they are doing and deal with an allegedly impaired detective who should know better.

And how do they deal with it? It doesn’t appear anyone requested field sobriety exercises, video taped the investigation or conducted a proper interrogation to get his side of the story. All they did was obtain a breath test – and the results could not be denied. At least the results could not be denied without a lot of embarrassment since the one blowing also had the task of maintaining the breathalyzer.

That is not even the worse part. What is far worse is what happens next. These officers participated in a cover-up during those early morning hours. The alleged drunk driver got a free ride home instead of a night in jail.

Official Findings Concerning the Administrative Review of Detective Christopher Denton

The New Port Richey Police Department just e-mailed me the memorandum that was dated today, May 22, 2015. It details the official findings concerning the administrative review of Detective Christopher Denton for an incident that occurred on April 10, 2015.

The thing that will be most interesting to criminal defense attorneys in New Port Richey with cases pending with Detective Christopher Denton is what he said. He said he only had one mixed drink and that he had the drink more than three and a half hours before. So either those statements were false or the breath test machine that he was in charge of maintaining was returning a dramatically exaggerated reading. If Christopher Denton was telling the truth – then it is clear that the machine doesn’t work.

These issues are ignored in the memorandum. Instead, it makes much less interesting findings. The memorandum concludes that Detective Christopher Denton violated D-1 Code of Conduct, IV. Prohibited Acts, Section 21, by reporting for duty under the influence of alcohol or drugs to any degree. He was also found in violation of Section 22 by being unfit for duty or having the odor of alcoholic beverages on his breath when reporting for duty.

The “official findings” left out anything about the following issues:

  • whether he was DUI and his fellow officers covered up this fact even after he blew more than double the legal limit; or
  • whether he drove from Tampa (or maybe his home in Wesley Chapel) to a traffic homicide investigation in New Port Richey in a NPRPD vehicle while under the influence of alcohol; or
  • whether he blew a .161 and .151 on the same Intoxilyzer 8000 breathalyzer that he was responsible for maintaining as an agency inspector for the NPRPD; or
  • whether he gave truthful statements when he reported drinking only one mixed drink hours before despite the breath test reading.

Amazingly, the memorandum ends with the Police Chief Kim Bogart accepting Denton’s resignation in lieu of termination. Showing up to work after having consumed a small amount of alcohol is one thing, but driving drunk to a traffic homicide investigation is quite another. The memorandum doesn’t seem to correspond with any of the evidence contained in the other documents attached to the memorandum.

As the top law enforcement officer for the City of New Port Richey, Kim Bogart, somehow ignored all of the other documents attached to the memorandum. He somehow missed the evidence of a moral-character violation.

More importantly, he ignored the fact that his officers gave Denton a free ride home instead of the required 8 hours in a jail cell. A blind eye was turned. The blue wall of silence is intact. Just ignore the other stuff. Move along, nothing to see here.

Allowing Resignation in Lieu of Termination

The letter of resignation, dated May 14, 2015, shows that Christopher Denton was allowed to resign in lieu of termination. Under this agreement, the Criminal Justice Training Commission (CJSTC) Form 61, Affidavit of Separation, will designate a disposition in Box 7.E of “voluntary separation or retirement in lieu of termination for violation of agency or training school policy not involving moral character violation…”

That finding made it possible to avoid any showing that a moral-character violation occurred and the corresponding requirement of submitting a CJSTC Form 61A, Affidavit of Separation Supplement. The supplement is not required because the “resignation” is not for any violation of Florida Statute section 943.13(4) or Florida Administrative Code, Rule 11B-27.0011.

Additionally, the NPRPD’s CJSTC Form 78, Internal Investigation Report does not denote any violation of Florida Statute section 943.13(4) or 943.13(7) or a violation of Florida Administrative Code, Rule 11B-27.0011 because no moral-character violation was alleged.

Under the facts contained in the rest of the report – how does an officer escape a moral-character violation finding? Does that mean the breathalyzer can’t be trusted? Why was it ignored exactly? Taking an administrative breath test might be proper if the person were not also DUI. But when several officers saw Christopher Denton driving and sitting behind the wheel at the scene, there is no ethical way to avoid a criminal investigation.

Formal Grievance Filed on Behalf of Detective Christopher Denton

The formal grievance from the Florida Police Benevolent Association (PBA) was filed on behalf of Christopher Denton on April 20, 2015, just 10 days after the incident. The PBA suggested a “compromise solution” that would allow Christopher Denton an opportunity to find employment with another law enforcement agency.

The PBA formal grievance noted that Chief Bogard had disregarded the fact that:

  • no damage had been done;
  • no one outside the Police Department for the City of New Port Richey has observed Denton’s behavior; and
  • the Department created the situation by calling Denton out to a crash scene;
  • Denton initially attempted to refrain from responding by noting it was not his week to be on call, but that the Supervisor told him to respond anyway in reference to a crash; and
  • Denton was intoxicated at the time and perhaps unable to make a better decision than to respond to a directive.

The formal grievance asked for the Chief to give Christopher Denton the opportunity to resign immediately instead of terminating his employment. The PBA noted that allowing the resignation would allow Christopher Denton to seek employment with Law Enforcement elsewhere.

Memorandum From Lieutenant Steven Kostas

In a memorandum from Lieutenant Steven Kostas to Chief Kim Bogart, the Lieutenant details his involvement in the investigation (or lack thereof).

In the memo he discloses that he was called to the scene of a traffic homicide investigation at 0234 after learning that another officer thought Detective Denton had driven his agency vehicle to the scene while under the influence of alcohol. After arriving at the scene, Lieutenant Kostas noticed an odor of alcoholic beverages on Detective Denton’s breath, his speech was thick tongued, and he was swaying from side to side.

Although Lieutenant Kostas told Detective Denton that he “thought he was intoxicated,” Lieutenant Kostas made the decision not to conduct a DUI investigation and arrest Detective Denton for DUI. Instead, Detective Denton’s firearm was secured and he was asked to submit to an “administrative” breath test.

Officer Brett Schambach also participated in this scheme by administering that breath test without performing a criminal investigation. The first reading was .161 and the second reading was .151. At that time, Detective Denton was told he was placed on administrative leave until further notice, but he was not arrested. Instead, Sergeant Engel was instructed to transport Detective Denton home.

The three officers at the scene that interacted with Detective Denton were then asked to write memorandums detailing their actions and observations.

A copy of all of Denton’s radio transmissions were preserved from when he went into service at 0127 hours until his arrival at the scene at 0218. That 51 minute time period also goes along with the text message that Detective Denton send to Detective Sergeant Michael Anderson. That message read: “Called out at 1240am for THI [traffic homicide investigation]. Not on call, coming from TPA [Tampa]. Not my on call week WTF.”

Lieutenant Steven Kostas found that:

Detective Denton drove his department issued unmarked vehicle, while impaired, at least 26 miles from his home in Wesley Chapel to the crash scene in New Port Richey….  Detective Denton reported to duty while under the influence of alcohol…, Detective Denton had an odor of alcoholic beverages on his breath and provided a breath sample of .161 and .151…. Detective Denton’s actions compromised the efficiency of the department. An active traffic homicide investigation was underway with a deceased person lying in the road, road closures and power lines down…. Detective Denton’s actions reflected poorly on the Department which had a tendency to destroy public’s trust and confidence in our Department and himself.

So what was missing from that? Maybe that the officers gave Denton a free pass. They skipped the criminal investigation completely and hoped that no one would notice?


When a law enforcement officer commits a crime while on duty, that crime should be investigated. When probable cause exists for a DUI arrest, then an officer that allegedly commits a DUI should be arrested. If those are the standard operating procedures then the officers should apply them across the board.

Officers shouldn’t avoid conducting a DUI investigation just because a friend or fellow officer is involved in the crime. The fact that a DUI prosecution is embarrassing or inconvenient to the employer should not factor into the decision of whether to arrest a law enforcement officer for DUI while on duty.

In this case, it was obvious to the officers that a fellow officer was allegedly DUI. But these officers did nothing required by the situation and their own standard operating procedures.

The main difference when investigating a fellow officer is that a Garrity warning must be read instead of (or in addition to) a Miranda warning before an interrogation can take place. A DUI investigation can proceed even when an interrogation does not. It happens all the time and officers are training on how to conduct a DUI investigation and preserve evidence without an interrogation. But selectively enforcing a law and letting a fellow law enforcement officer break the law with no arrest (and a free ride home) is corrupt.

It is not the crime of DUI that will destroy the public’s trust and confidence in the New Port Richey Police Department, it is the cover up of that crime. The destruction of public trust occurs when the officers selectively enforce the law in a way that protects their own.

Christopher Denton DUI Text

Article Updated on May 23, 2015

For those that might be interested, we just uploaded three years worth of data on that breathalyzer 80-001064 obtained through a public records request to the New Port Richey Police Department. Click here to find the agency records for the Intoxilyzer 8000, Serial Number 80-001064. The records show that in 2014, the machine was sent out for repairs twice and was out of service for much of the year.

When it was in service in 2014, numerous problems were uncovered during monthly inspections including repeating tests more than once, missing forms that should have documented failed monthly agency inspections, controls outside of tolerance, pen and ink amendments without a date, problems with the Alcohol Free / Mouth Alcohol test, the failure to upload data properly, and the destruction of 6 weeks worth of COBRA data from late October through the middle of December. Christopher Denton performed the agency inspections in October and November when many of the most serious problems occurred.

Read more about DUI Attorneys for New Port Richey, FL.

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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