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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 (Fla. 6th Cir. App. Ct. Feb. 28, 2008).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

ERIC WALOS,

                        Petitioner,

 

 

vs.                                                                                                Appeal No. 07-0064AP-88A

                                                                                                    UCN522007AP000064XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI 

            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 (Fla. 2d DCA 2001).

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.[1]  Mr. Daniels explained that the State of Florida has approved only two breath test instruments, the Intoxilyzer 5000 and the Intoxilyzer 8000, but that the Intoxylizer 5000 has been phased out, replaced by the Intoxilyer 8000.  At the conclusion of the review hearing, the Department denied Walos’ motions to invalidate his license suspension due to insufficient evidence of an unlawful breath alcohol level. 

            Before 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 Fla. Stat. 322.2615(7)(a)1-2.  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Walo’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994). Further, stringent rules of evidence, applicable in a criminal setting, do not apply in a department administrative proceeding.  Department of Highway Safety and Motor Vehicles v. Alliston, 813 So.2d 141, 145 (Fla. 2d DCA 2002).    

            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.

 

There 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 (Fla. 1st DCA 1997)(stating that, “[t]aking any applicable administrative rules into account, the court must make such decisions as ‘essentially a matter of law to be determined by the ordinary rules of statutory construction’”); see also Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla. 1996)(explaining that courts must first look to a statute’s plain meaning in statutory construction).  Had the FDLE intended the testing procedure set forth in Rule 11D-8.006(2) to apply to the Intoxilyzer 8000, the Court finds that the Rule would have said so.  See Moonlit, supra. 

            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 (Fla. 3d DCA 2007), is misplaced since there is no evidence that the breath test machine used on Walos had remained in service after failing multiple inspections like the machine utilized in Wejebe.  Therefore, since Walos failed to submit proof that the Intoxilyzer 8000 used during his breath test was not in substantial compliance with the appropriate regulations, the burden never shifted to the Department to prove substantial compliance.  See id. at 1249. 

            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.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2008.

 

 

 

 

                                                         _________________________________

                                                         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

250 N. Belcher Road, Suite 102

Clearwater, FL  34625

 

Thomas C. Mielke, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 - 140th Avenue North, Suite 1002

Clearwater, FL  33762



[1] 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.