NOTICE: THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL
UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE
REVIEW AND, IF FILED, DETERMINED
Petition for Writ of Certiorari to
Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S
LICENSES – breath test instrument – testing and inspection procedures – FDLE
regulations – statutory construction – rules of statutory construction apply to
regulations promulgated by the FDLE - breath
test instrument, tested on June 14, 2007, and again on July 14, 2007, complied
with Administrative Code, Rule 11D-8.006(1), requiring breath test machines to be
inspected at least once every calendar month – plain language of Rule
11D-8.006(2), requiring that Intoxilyzer 5000 be inspected before and after
being moved, did not apply to an Intoxilyzer 8000 – Rule clearly distinguishes between
testing and inspection for an Intoxilyzer 5000 and an Intoxilyzer 8000 - Petition denied. Walos v. Dept. of Highway
Safety and Motor Vehicles, No. 07-0064AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 07-0064AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply. Upon review of the briefs, the record, and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.
The Petitioner, Eric Walos (Walos),
seeks review of the Findings of Fact, Conclusions of Law and Decision, entered September
24, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles
(Department), sustained the suspension of Walos’ driving privilege for driving
under the influence. In reviewing the
Order and the administrative action taken by the Department, this Court must
determine whether Walos was afforded procedural due process, whether the
essential requirements of law were observed, and whether the Department’s
findings and judgment are supported by competent substantial evidence. See Vichich v. Department of
Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (
After a formal review hearing, held on September 13, 2007, the hearing officer made the following findings of fact:
On July 14, 2007, Petitioner was directed into a DUI Checkpoint. Petitioner had the odor of an alcoholic beverage on his breath, bloodshot and watery eyes, slurred speech and unsteady balance. Petitioner performed poorly on the Field Sobriety Tests. A breath test was administered with the results being .139 and .125.
The record further shows that Walos was stopped by Deputy Ream, of the Pinellas County Sheriff’s Office, after he failed to stop as directed at a DUI Checkpoint. Upon making contact with Walos, Deputy Ream smelled the odor of alcohol, noted that his eyes were bloodshot and watery, his speech was slurred, and his balance was unsteady. Walos failed the subsequent field sobriety tests and was transported to the DUI mobile unit. Deputy Ream conducted the 20-minute observation period and then Walos submitted to a breath test on an Intoxilyzer 8000, instrument # 80-001259, with results of .139/.125.
At the review hearing, Walos testified that
it appeared to him that the breath test instrument was not working properly as
the officers tapped the machine and the machine’s lights went on and off
indeterminately. Stephen Daniels, a
certified agency inspector, was also called to testify at the review hearing as
an expert on the maintenance of the Intoxilyzer 5000 and Intoxilyzer 8000. Mr. Daniels explained that the monthly
maintenance checks and the machine’s built-in self-checks
help to ensure that a breath test instrument is functioning properly. Mr. Daniels also explained why it is
important to inspect the breath test instrument prior to the instrument’s
removal and again at the next testing facility before a breath test is
administered. Mr. Daniels explained that the State of
this Court, Walos argues that his breath test results were insufficient
evidence that he was unlawfully driving under the influence of alcohol as law
enforcement failed to comply with FDLE regulations when it moved the
Intoxilyzer 8000 from the Central Breath Testing facility to the DUI mobile
unit without conducting the proper maintenance checks before and after the
machine was moved. This error, Walos
argues, was exacerbated by the fact that the required monthly maintenance had
not yet been performed. In addressing these
issues, the Court reiterates that the hearing officer was charged with
determining, by a preponderance of the evidence, that there was probable cause
to believe that Walos was in actual physical control of a motor vehicle while
under the influence and that Walos had an unlawful breath alcohol level of .08
or higher. See
First, the Florida Administrative Code, Rule 11D-8.006(1) states that: “Evidentiary breath test instruments shall be inspected by an agency inspector at least once each calendar month.” As pointed out by the Department in its Response, the subject breath test machine was tested on June 14, 2007, which establishes compliance with FDLE rules for Walos’ breath test on July 14, 2007. There is no requirement that the monthly inspections occur every thirty days.
Next, the Florida Administrative Code, Rule 11D-8.006(2), states:
Whenever an agency relocates an Intoxilyzer 5000 evidentiary breath test instrument for use at another facility, an agency inspection shall be conducted prior to the instrument’s removal, and another inspection shall be conducted prior to the instrument’s use for evidentiary breath testing at the new facility. A mobile testing unit is considered an agency facility.
is nothing in the record to show that the breath test instrument used in this
case, an Intoxilyzer 8000, was tested prior to being moved and once again after
it reached the mobile testing unit.
However, in applying ordinary rules of statutory construction which are
applicable to administrative rules, the plain language of Rule 11D-8.006(2)
provides that only an Intoxilyzer 5000 need be tested before and after being
relocated. See Willete v. Air
Products, 700 So.2d 397, 399 (
Indeed, Rule 11D-8.006(1) clearly distinguishes between the type of monthly agency inspection procedures to be utilized for the Intoxilyzer 5000 and the Intoxilyzer 8000. Walos’ expert, Mr. Daniels, also differentiated between the two machines, explaining: “The 5000 was big and obnoxious. The 8000 is the size of a tool chest, you know, a little hand tool chest. It’s easier for transporting.” The Court notes that the difference in size and ease with which the machine can be moved may be the basis for the FDLE not imposing the same testing requirements for an Intoxilyzer 8000 as an Intoxilyzer 5000.
Wissel v.State, 691 So.2d 507 (Fla. 2d DCA 1997), cited by Walos in support of his argument that the testing procedure set forth Rule 11D-8.006(2) implicitly applies to the Intoxilyzer 8000, lacks merit. The question before the Second District Court of Appeal in Wissel was whether every step, aspect, or procedure employed in the simulation tests used to inspect breath test instruments had to be expressly prescribed by rule or regulation. See id. at 507. The Wissel Court concluded that hyper-technical details implicit and inherent in the scientific testing of the breath test instrument, such as how to mix a simulator vapor solution or clean the glassware utilized, need not be expressly stated in the rules. See id. at 508. The holding in Wissel does not apply to the facts of this case in which the Court is looking at the application of a codified testing procedure for a specific instrument.
Likewise, Walos’ reliance on State,
Department of Highway Safety and Motor Vehicles v. Wejebe, 954 So.2d 1245 (
Lastly, while Walos testified that he believed the machine was not working properly, the hearing officer, as the fact-finder, was charged with resolving conflicts in the evidence. Satter, 643 So.2d at 695. The Court is prohibited from reweighing the evidence or substituting its judgment for that of the hearing officer. See id.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.
AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
GEORGE M. JIROTKA GEORGE W. GREER
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Michael L. Mastrogiovanni, Esquire
Thomas C. Mielke, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews
 Mr. Daniels explained that a machine’s self-check is done for dry gas analysis versus the test performed by an agency inspector who utilizes a wet vapor process to ensure that the machine is reliable for evidentiary sample collection.