IN THE COUNTY COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT



IN THE COUNTY COURT OF THE EIGHTEENTH JUDICIAL CIRCUITIN AND FOR BREVARD COUNTY, FLORIDASTATE OF FLORIDA,CASE NO.: 052011MM22862AXXXPlaintiff,vs.MAXWELL GORDON FURTH,Defendant.____________________________/STATE’S ANSWER AND MOTION TO STRIKE IN RESPONSE TO DEFENDANT’S MOTION TO SUPPRESS BLOOD TEST AND BLOOD TEST RESULTS OR IN THE ALTERNATIVE, MOTION IN LIMINE WITH REGARD TO BLOOD TEST AND BLOOD TEST RESULTS BASED UPON THE INSUFFICIENCY OF THE F.D.L.E. RULES AND REGULATIONSCOMES NOW, the State of Florida by and through the undersigned Assistant State Attorney, and hereby respectfully requests this Honorable Court to enter an Order to Strike the allegations listed in the defendant’s motion for the reasons stated herein, and further, moves this Honorable Court to Deny the Defendant’s Motion to Suppress Blood Test for the reasons stated herein.MOTION TO STRIKEPursuant to Fl. R. Crim. P. 3.190, the State moves that the following allegations by the Defendant be stricken on the basis that they are both insufficient pleadings and too vague for the reasons stated below. The subject allegations are each stated and referenced with allegation number used in the State’s Answer and with reference to locations within Defendant’s Renewed Motion to Suppress Blood Test Results Based upon the Insufficiency of the FDLE Regulations. Several of defendant’s allegations are clearly insufficient pleadings. The pleadings in questions are bare allegations without any facts in support, without any legal authority, without recognized scientific support, and without argument. In the interest of judicial efficiency, the State has filed this Motion to Strike in order to afford the defendant an opportunity to present arguments so that these issues can be properly briefed and argued in a timely manner. The State hereby identifies two categories of insufficient pleadings by defendant.1.Insufficient Allegations (lack of specificity – legal grounds) The following allegations are not specific enough to allow a response. Each refers to some example of FDLE’s rules as “not being legally sound”. There is no indication of what rule of law is being violated, there is no legal authority connecting that type of act with a legal principle, and no other analysis or other authority supporting that position. It appears to be simply an assumption based on defendant’s view of something that is “scientifically unsound’ (which is under contention) and extending that somehow to a legal conclusion. 1.[Df.’s “Motion to Suppress Blood Test” Section 21(b)]. Color coding or other reliance on documentation from manufacture or distributor as to its preservative or anti-coagulant contents (as permitted by Rule 11D-8.012(2)) is not legally sound. AND2.[Df.’s “Motion to Suppress Blood Test” Section 21(d)]. Rule is unsound if a blood sample is submitted for analysis within seven days andA) There is no need for it to be refrigerated, andB) There is no time frame for which it must be received by the lab. (Emphasis added)The State is entitled to be given at least the identification of the legal principle that is allegedly being violated, and presumably some legal support connecting the FDLE’s action to the application of that principle. By striking these allegations, defendant is still left with the allegation that the action is scientifically unsound, which is the basic contention. 2.Insufficient Allegations (lack of specificity – alleged due process violations) In addition, the allegations are not specific enough to allow a response, but for a different reason than above. Each refers to some example of FDLE’s rules, practice, or procedure as violating “due process”. However, there is no indication of what theory of due process the defendant is attempting to invoke. 1.[ [Df.’s Motion Section 21]. “The rule provides that refrigeration is not required subsequent to the initial analysis of the blood in the lab . . . which is . . . a clear violation of due process” 2.[Df.’s Motion Section 12]. FDLE Rules relating to the Dept.’s approval of the analytical procedures submitted by the analyst are not sufficiently detailed. (Criteria to judge the methodology, other criteria, number of people making the decision) is scientifically unsound and denies due process.3.[Df.’s Motion Section 23(c)]. The use of single blind testing for proficiency testing program for analyst renewals is not scientifically sound and violates due process. 4[part of Df.’s Motion section 23] Results from reference labs are included with results of those analysts being tested to establish a target answer which denies the tested person due process.The cases cited in defendant’s Motions offer scant explanation. Of the three cases, two have nothing to do with due process, and the third, State v. Bender, 382 So2d 697 (Fla. 1980), did involve due process, but it was a breathalyzer case (not blood sample), and the Florida Supreme Court in Benders specifically rejected the claim that constitutional rights of due process and equal protection were violated (Id at 700). Without a more detailed allegation and without any legal support for the allegation (let alone a Florida Supreme Court case that holds against such a theory), the State is entitled to have more specific information about the allegation and how it allegedly offends due process in order to properly respond.STATE’S RESPONSE TO DEFENDANT’S RENEWED MOTION TO SUPPRESSI.Introduction Defendant has presented allegations as to why the Florida Department of Law Enforcement (FDLE) regulations contained in Florida Administrative Code Chapter 11D-8.001 through 11D-8.0018, all relating to Blood Alcohol testing, are insufficient. The State’s arguments will be presented in the following format:The State will introduce four relevant general considerations and present preliminary matters in Section II;The State will discuss each allegation in detail in Section III of this Answer.The State will summarize and conclude its argument in Section IV of this Answer. II.Preliminary MattersBefore addressing defendant’s allegations in detail, the State suggests that it is useful to briefly introduce four considerations that have a general bearing on defendant’s positions:1) Any standards or guidelines that the applicable statutes might provide; 2) The basis of the leading case on challenging the adequacy of the blood testing rules; 3) The general purpose of the Rule; and4) The fact that none of defendant’s points are supported by evidence (or even an allegation) that they occurred in the case before this court. First, the applicable law contains within it the necessary discretion granted to the FDLE for promulgating these rules and the effect of any issues that could arise regarding the rules. Defendant has quoted in his Motion the enabling legislation from the applicable count (FS 316.1933(2) (b)). However, the defendant did not provide the complete quote. What was missing from the defendant’s quote was the final sentence which reads,“Any insubstantial differences between approved methods or techniques and actual testing procedures, or any insubstantial defects concerning the permit issued by the department, in any individual case, shall not render the test or test results invalid.” (Emphasis added)This provision provides the basic guideline regarding sufficiency in the rules and is part of the conclusion of courts in many cases that challenge FDLE rules (conclusions reference “insubstantial’ differences that do not render the test not test results invalid). Perfection is not required, nor is excessive detail in rules, standards, or procedures, or in the Department’s permitting processes. The purpose of the statute are to “ensure reliable scientific evidence for use in future court proceedings and to protect the health of those persons being tested,” State v. Bender, 382 So2d 697, 699 (Fla. 1980). The Implied Consent law provides further guidance on the utility of the rules and the proper considerations for FDLE by requiring that:“Such rules must specify precisely the test or tests that are approved by the Department of Law Enforcement for reliability of result and ease of administration.” (Emphasis added)These purposes are met by practical, workable rules; with due consideration given to factors other than overly theoretical scientific considerations. This mandates the Dept. to consider factors in addition to reliability. Second, the leading case on challenging adequacy of the blood testing rules is State v. Miles, 775 So.2d 950 (Fla. 2000). This case illustrates the considerations necessary to establish the insufficiency of a Rule dealing with measuring blood alcohol. Miles “is different from many others in that the adequacy of the rule itself was challenged at trial, as opposed to the noncompliance with a rule.” (Miles, at 954). The case involved a blood sample taken without a preservative added and without a specific standard for refrigeration (under a previous version of Rule 11D-8.012 of the Florida Administrative Code). The blood sample was unrefrigerated for 14 days. The issue considered by the court was whether, in the absence of more specific requirements to properly preserve the blood sample, the existing rule ensured a reliable analysis, complied with the core policies of the statute [as stated in State v. Bender, 382 So.2d 697 (Fla. 1980)], and adequately protected the integrity of the process. The trial court in Miles had conducted a hearing on the issue and concluded that the rule was insufficient because there were no provisions for refrigeration or a preservative. That result had been affirmed on appeal [State v. Miles, 732 So.2d 353 (Fla. 1st DCA 1999)]. The Florida Supreme Court also agreed, concluding that the “the rule does not comply with the core policies of the statute,” given that the rule does not address a critical element of a reliable analysis (preservation of the sample).One critical fact of the Miles case is that everyone involved (including the State) agreed on “the vulnerability of a sample when left unrefrigerated and without preservatives” (Miles, at 954). The Miles opinion makes repeated references to “”without dispute”, “the undisputed importance of the process of maintaining the sample”, testimony . . . consensus”, and “evidence presented by both defense and State experts” which seems to indicate that agreement of the experts was a significant factor in the decision. It is also important to note that for the 1997 situation in Miles there were no rules on preservation for the collection, storage and transportation of blood samples. The situation in the case before this court is entirely different. As a result of Miles, a set of rules have been written and incorporated into Rules 11D-8.011 through 8.015 (as of July 29, 2001). These rules were promulgated in accordance with Chapter 120, F.S., and addressed the whole process of collection, storage and transportation, including the issues addressed in Miles. The process included expert technical advice, industry accepted standards, availability of public hearings, and final review by a Joint Administrative Procedures Committee. Although the holding in Miles may not be directly relevant and beneficial to the defendant given the situation faced in the instant case, the State believes that Miles is clearly relevant and beneficial to illustrate the significance of an issue where judicial review was warranted and resulted in a change to the rules. That point involved:a) A procedure of significant and commonly recognized impact that was not addressed at all in the rule; b) Where expert testimony from the scientific legal community was in substantial agreement that a change was needed, and c) Where the facts (14 days without refrigeration) were clearly a violation of a fundamental procedure in dealing with blood samples, and dramatically supported a need for specific guidelines in the rule. The vast majority of claims in Defendant’s Motion of this case address a point which is allegedly “scientifically unsound,” but none of these points have the significance of the single point in Miles. Thirdly, in most of the issues raised by defendant, there is a misunderstanding of the purpose of rules. The defendant’s expert witness believes that rules are scientifically insufficient because “there’s no objective means, after the fact, to ensure that (a particular requirement required by the rule) is met.” (Lines 21 – 23, page 23, Deposition of Janine Arvizu, April 22, 2008). The purpose is not to outline how to PROVE it was done. Compliance is proven either through testimony or official records, not by adding phrases to the rule or requiring additional records be signed off regarding each detailed requirement. This fundamental difference in viewpoint is at the heart of most of defendant’s positions. Finally, there is no specific evidence of any non-compliance with any the rules in this case. The points raised are theoretical considerations that, if they were to occur, have the potential to affect the reliability, to an unknown extent. This point is critical as the present situation differs from the basis of Miles as analyzed above. The judicial review in Miles dealt with an instance where there was no rule addressing an accepted standard practice, it was undisputed that defendant’s sample was not processed according to the accepted standard practice, and there was consensus expert testimony that the standard practice could adversely affect the test result. Further, the instant factual situation departs from the circumstances of Miles the more remote, speculative, theoretical, and insubstantial the connection between the potential harm and the published rule becomes. To each of defendant’s points, the State will show that a properly promulgated rule addresses the procedure, that the defendant’s sample was processed in substantial accordance with the rule, and that the results are sufficiently reliable so as to be generally acceptable to the scientific community.The State herein submits more detailed answers to defendant’s allegations below. III.Defendant’s Allegations and State’s Responses Thereto:To facilitate ease of reference, each of Defendant’s allegations is individually listed below, each with discussion and analysis. Also, immediately following the allegation number within the heading, a reference is placed to locate the allegation within the Defendant’s Motion. For example, - [Df.’s Motion Section 21(c)] would be the section 21 and paragraph (c) contained in Defendant’s Motion.The defendant’s allegations are:[Df.’s Motion Section 21 (a)] “Rule is inadequate due to its failure to provide for any method or criteria to determine whether the antiseptic used for cleansing the skin puncture area ‘does not contain alcohol’”.This allegation is made although the Rule expressly requires “an antiseptic that does not contain alcohol” be used as a wipe prior to collection of a blood sample. [FDLE Rule 11D-8.012(1)] There is no claim that a non-alcoholic swab was NOT used in the instant case, only a claim that the rule itself needs to actually enable an after-the-fact assessment of compliance with use of an alcohol-free swab. There is also no claim that use of an alcohol swab WOULD contaminate the blood sample. This allegation reflects a misunderstanding by Defendant of the purpose of rules versus compliance with rules. Moreover, No violation of a Rule is alleged. It is admitted that even if the Rule were to be violated, there is no allegation of harm, only the potential of contamination (implying that further study would be necessary to evaluate that risk).No scientific studies, professional association positions, or any other such evidence has been presented by Defendant that supports such a change in the rules. Nor has there been offered any studies that evaluate objectively and quantitatively how the use of alcohol swabbing before collection affects the content of the blood.No case law has been offered that supports changing a criminal law Rule under circumstances other than where evidence indicates that the violation complained of has in actuality occurred, and that it presents a significant risk to the reliability of the process and the to the purposes of the Rule. State v. Miles, 732 So.2d 353 (Fla. 1st DCA 1999).Responding to this issue as raised, the State contends that this allegation is remote from the actual facts of this case, the risk is theoretical and unsupported by scientific data, procedures do indeed exist to comply with proper practices, and that the allegation is therefore speculative, theoretical, and hyper-technical. [Df.’s Motion Section 21(b)]. Rule has no requirement that specifies the amount of preservative or anti-coagulant to be added to the sample.It is commonly accepted in the scientific community that the amounts of anticoagulant and preservative inside the glass evacuation tubes is sufficient to preserve the blood and prevent clotting. The State’s expert at trial will testify to the levels of anticoagulant and preservative which are present in the evacuation tubes and to the scientific conclusions that these amounts are sufficient for a blood sample drawn from a living person. It is also significant to note that these are added in the manufacturing process, under industry accepted standards, not by State lab personnel for each blood draw. Further, there is an issue of precedent. This exact point was raised as an original issue in the trial court proceedings of Miles. The issue was mentioned in passing in the Proceedings to Date section of the Florida Supreme Court opinion: “A defense expert pointed out that the present rule . . . does not even require the use of a preservative, and simply mentions the need for an anticoagulant without specifying the necessary amount” (emphasis added).Although this was mentioned in the case background (above), that particular issue played no apparent part in the Miles decision. As outlined in Section II of this Answer, after Miles the rule was reviewed and modified. This particular issue has been recognized through the full Florida judicial appeal process and a subsequent technical review by FDLE to bring the rule into legal compliance.Absent any contrary accompanying analysis offered by defendant, it should be assumed that on this issue the case speaks for itself. The State contends that this issue should be considered previously raised and answered. [Df.’s Motion Section 21(b)]. Color coding or other reliance on documentation from manufacture or distributor as to its preservative or anti-coagulant contents (as permitted by Rule 11D-8.012(2)) is not legally sound. And[Df.’s Motion Section 21(b)]. Color coding or other reliance on documentation from manufacture or distributor as to its preservative or anti-coagulant contents (as permitted by Rule 11D-8.012(2)) is not scientifically sound.These two allegations are combined as an example of linking something which is allegedly scientifically unsound with the conclusion that it is also legally unsound. To present the illogical sequence that “X is scientifically unsound, and therefore, X is legally unsound”, the defendant must convincingly argue the necessary preliminary premise that “if a statement is scientifically unsound, then it is legally unsound”. Since this is obviously not true, defendant must concede any automatic connection between scientifically and legally, and make the case separately of why some procedure is legally unsound. This he has failed to do in every point where that is raised. Further, addressing the relevant issue of whether reliance on the manufacturer’s representations is warranted or is somehow a violation of the reliability of the process, the court should again, look to a previous Florida Supreme Court case as instructive, if not dispositive. In State v. Bender, 382 So.2d 697 (Fla. 1980), the Florida Supreme Court reviewed a trial court decision that found constitutional violations in “the failure of HRS or DHSMV to properly incorporate the procedures and methods of the manufacturer.” In quashing the trial court order, the Supreme Court stated that “We further reject the trial court’s holding that the respondent’s constitutional rights . . . were violated by the failure . . . to incorporate the manufacturer’s procedures . . . as part of the promulgated rules. We note that the rules under attack require the preventative maintenance operations and preventive maintenance check to be in accordance with the procedure set forth by the manufacturer. What is attacked is the failure to attach and file those procedures with the Secretary.” In Bender, the defendant argued that not enough reliance was placed on the manufacturer’s procedures and methods, and that those must be part of the rules. The court upheld the authority of the administrative executive agencies to be responsible to establish proper uniform and reliable testing procedures, and the reasonable latitude to define those tests. The published rules were “in accordance with the procedures set forth by the manufacturer”, and as a safeguard “procedures are always subject to judicial scrutiny.” In this case, the defendant is arguing that too much reliance is placed on the manufacturer’s representations. If the State understands defendant’s position correctly, it is proposed that the rules must include some procedure to double-check on those manufacturer’s representations. Again, as Bender demonstrates, where an issue is raised on simply too fine a point, without a demonstrated harm or serious risk of harm, and without scientific support in applying the science to a legal application, the process has departed from the lesson of Miles. Whether or not the reliance on the manufacturer’s representations (either too much or too little) is technically ‘scientifically unsound’, the real issue is whether a rule addresses the concerns of the implied consent law, and the practice is substantially equal to the rule. For that, the State expects and deserves more than bare assertions. Since the Bender case is cited in Defendant’s Renewed Motion, without any further analysis related to this point, the State contends that the count’s response in Bender holds sway in the instant case:“The published rules were acceptable as being “in accordance with the procedures set forth by the manufacturer.” Finally, identifying the purpose and contents (if any) of glass evacuation vials in medical labs is a routine and accepted a practice, and the State will present scientific evidence, including the present practices of the FDLE, to support those practices as being a reasonable approach to meeting the purposes of the Implied Consent law. [Df.’s Motion Section 21(d)]. Regulations requiring refrigeration should specify a temperature that constitutes refrigeration.Refrigeration was a main point of the preservation discussion in Miles, and of the subsequent drafting of the rules. The State contends that the issue of preservation was fully considered and that present practices comply with current generally accepted procedures. The allegation presented by the defendant here is another theoretical distinction (absence of a specific temperature as a definition of “refrigerated”), that has no demonstrated relationship to the effectiveness of the rule, and no evidence showing any effect of temperature variations. Refrigeration is considered good laboratory practice, but does not require an exact definition in the rule.6.[Df.’s Motion Section 21(d)]. Rule is unsound if a blood sample is submitted for analysis within seven days and(A) There is no need for it to be refrigerated, and (B) There is no time frame for which it must be received by the lab.Response to A. If the Defendant is implying in this allegation that refrigeration is not required in the processing of a blood sample if it is submitted for analysis within seven days of collection,” the State’s position is that this is a mistaken, incomplete, and misleading interpretation of the rule. However, this is exactly the interpretation that defendant is also alleging in item 9 below. To clarify this part of the process, one must look at the complete rule [Rule 11D-8.012(5)], which states: “Blood samples need not be refrigerated if submitted for analysis within seven days of collection, or during transportation, examination or analysis. Blood samples must otherwise be refrigerated, except that refrigeration is not required subsequent to the initial analysis.” (Emphasis added)From a full reading of this provision, the meaning is clear. A blood sample does not have to be refrigerated by the law enforcement agency if it submitted to the analyzing laboratory within seven days of collection (any longer storage by the submitting agency and it does have to be refrigerated) and during (overnight) transportation. The blood sample does have to be refrigerated by the laboratory except during examination or analysis, or subsequent to the initial analysis. Consequently, Defendant’s allegation 7.A is simply not true.Response to Issue B.Regarding when a blood sample must be received by the lab, Rule 11D-8.012(6) clearly states that:“Blood samples must be hand-delivered or mailed for initial analysis [by the law enforcement agency] within thirty days of collection . . .” and further states:“Blood samples which are not hand-delivered must be sent by priority mail, overnight delivery service, or other equivalent delivery service.”Any reasonable reading of this rule would conclude that there IS a time frame that must be met – thirty days max after collection plus overnight delivery. To suggest otherwise is another example of a hyper-technical interpretation with no bearing on the factual situation – and again no analysis of consequences, scientific support, or legal analysis. Argument A fails and argument B fails; and clearly so does defendant’s allegation of ‘unsound” if A and B’.7.[Df.’s Motion Section 21(d)]. A blood sample could remain unrefrigerated for an indeterminate period of time.This allegation derives from Item 6 and is based on the two erroneous assumptions therein.8.[Df.’s Motion Section 21(d)]. If a blood sample is submitted within seven days, it does not need to be refrigerated at any time.This is another erroneous assumption addressed in Item 6 A above.9.[Df.’s Motion Section 21(d)]. It is implied (not alleged) that a new rule is needed because there is no rule governing how the blood sample should be treated once it arrives at the lab for analysis.It is unclear what legal issue is being addressed by this statement.10.[ [Df.’s Motion Section 21(d)]. The rule provides that “refrigeration is not required subsequent to the initial analysis of the blood in the lab” This allegation relates to the statutory authority of FDLE to write rules for the evidentiary blood alcohol result. FDLE is without authority to promulgate rules for storage subsequent to the initial analysis. However, the State’s expert witness also has personal practical experience with retesting of blood (by both the State and the defense) that will illustrate the process and current practice at trial.11.[Df.’s Motion Section 21 (e)]. Rule 11D-8.012(7) has nothing to do with scientific reliability and is rather an improper attempt to state a legal principle of reliability.Rule 11D-8.012(7) provides: “Notwithstanding any requirements in Chapter 11D-8, FAC, any blood analysis results obtained, if proved to be reliable, shall be acceptable as a valid blood alcohol level”.First, there is obviously no requirement that a rule must necessarily have to address scientific reliability. Second, the State fails to see how a procedure that permits an alternative process, “if proved to be reliable, can be detrimental to reliability. There presently exist alternatives to the implied consent law for admitting blood alcohol test results (see Robertson v. State, 604 So.2d 783, and State v. Bender, supra). It is the State’s view that the rule which defendant is objecting to simply recognizes such alternatives (present or future). 12.[Df.’s Motion Section 22(e)]. FDLE Rules relating to the Dept.’s approval of the analytical procedures submitted by the analyst are not sufficiently detailed. (Criteria to judge the methodology, other criteria, number of people making the decision) is scientifically unsound and denies due process.The State’s expert witness at trial will testify as to the analytical procedures specified by the rules (gas chromatography or alcohol dehydrogenase, which are both generally accepted and defined procedures within the scientific community). The expert will also testify as to the requirements of the written procedures, the criteria applied, and the requirement for applying the proper requirements (effective date of rules based on submitted date of blood sample). As another example of defendant’s opinion that the rules are not sufficiently detailed, this allegation raises the issues such as the purpose of rules, the enabling legislation’s direction regarding insubstantial defects, the FDLE’s administrative discretion in addressing multiple objectives, and the lack of any demonstrated harm – all of which have been previously raised and discussed under other allegations. 13.[Df.’s Motion Section 22(a)]. The necessary educational criteria for obtaining an analyst permit requires completing, but not successfully completing, certain college credit hours. This results in a failure to adequately judge competency of analysts.The State’s expert witness will testify that within the scientific community, where an applicant is required to have some education in a field, but a degree is not a job requirement, a grade of C or better is considered “completing” a course. This is the interpretation followed by FDLE.14.[Df.’s Motion Section 23]. The proficiency testing program for analyst renewals is not scientifically sound and violates due process. Various allegations are advanced under this point. They are as follows:a) The Dept. uses single blind, rather than double blind, testing, The State’s expert witness will testify that this is an accepted test process used by several agencies and states, including the U.S. Department of Transportation. This process also has the administrative advantage of allowing the submittal of results within the required time frame. Incidentally, this is an example of how the Department’s rules and regulations not only must be scientifically sound, but where equally acceptable approaches exist, are also balanced among other non-scientific considerations. This differs from a purely academic or scientific view which is likely to be absent from these other considerations, and, the State contends, reflects the legislative intent of the enabling legislation that grants broad authority to make reasonable selections and decisions between acceptable procedures. “The FDLE may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits that are subject to termination or revocation at the discretion of the department.” b) The Dept. uses reference laboratories without a selection criterion and without establishing a minimum number of such labs. c)Results from reference labs are included with results of those analysts being tested to establish a target answer.d)An analyst is permitted to elect not to participate in one proficiency test cycle each year. e)An analyst may incorrectly determine one proficiency sample per year and still retain his permit.These allegations raised by defendant regarding renewal of analyst permits deal with the interpretation of procedures and will be explained in testimony the State’s expert witness. IV:CONCLUSION It has been noted that there is no shortage of cases that attack the details of the rules and regulations of blood alcohol testing: “There are a plethora of cases dealing with blood, breath, and urine testing for alcohol content and the necessity for FDLE to adopt rules.” (Jenkins v. State, 855 So.2d 1219, at 1226)Most case law regarding attacks on blood alcohol testing address breath analysis, but the requirements of the law are similar to those of blood analysis, and more importantly, the cases are similar in that they generally present an attack on theoretical aspects of the rules/procedures. (The obvious exception to this is Miles, addressed in Section II Preliminary Matters, Point Second above). To provide some examples, three cases are of particular interest – two 2nd DCA cases and one 5th DCA case citied by the 2nd DCA. To begin with, a broad view of the issues typically raised in allegations of insufficiency of the rules dealing with blood alcohol measurements, State v. Berger, 605 So2d 488 (Fla. 2d DCA) is useful. The issues were the sufficiency of the guidelines and the monthly reliability testing of the test machines not being a rule promulgated under Chapter 120, F.S. After taking expert testimony to gather the existing facts on the guidelines and the reliability testing, the court concluded that any requested changes were “insubstantial and do not affect the reliability of the tests.” In State v. Friedrich, 681 So2d 1157, Fla. 5th DCA 1996) tests were alleged to be scientifically unreliable because there was, first, no definition of shelf life of the stock solution, and second, the label of the stock solution didn’t show the exact water/ethanol mix. Expert testimony was given on those issues, and the court concluded first, that the allegations were “theoretical and speculative” (Friedrich at 1161), and second, that the test results must recognize the tolerance or range of the water/ethanol mix (not exclude the test evidence because of there was a (narrow) range of test solution). The court declared the results were admissible “if they are sufficiently reliable so as to generally acceptable in the scientific community.” The court further summarized that the State “must do a competent job, but not a perfect one.” (Friedrich, at 1164)In Wissel v. State, 691 So2d 507 (Fla. 2nd DCA 1997), the defendant alleged that certain details were missing from the rules regarding the testing of the instruments used. Allegedly necessary elements included: a definition of ‘vapor mixture’, how to clean the glassware, the type of glassware to be used, and where to obtain the stock solution. Referencing Friedrich, the court concluded that it is not necessary that every step, aspect or procedure employed in the simulation tests used to inspect breath test instruments must be expressly prescribed by rule or regulations, and held that: “We hold that procedures that are implicit and incidental to procedures otherwise explicitly provided for in a properly adopted rule or regulation do not require further codification by a further adopted rule or regulation. In our opinion, to hold otherwise belies statutory intent and/or common sense.” (Emphasis added) Further, the 2nd DCA concluded that “appellant’s attack, based on the lack of a rule or regulations to cover every step of the testing procedures for breath test instruments, is not only speculative and theoretical, but also hyper-technical.”The State asserts that after testimony clarifies the actual rules and procedures that have been developed by FDLE to address the purposes of the Implied Consent law, and the substantiality and weight of Defendant’s allegations have also been reviewed, the issues raised in this case will be shown to be both insubstantial and lacking any affect the reliability of the tests.WHEREFORE, the State respectfully requests this Honorable Court to deny Defendant’s Motion to Suppress Blood Test and Blood Test Results Or In The Alternative, Motion in Limine With Regard to Blood Test and Blood test Results Based on the Insufficiency of the FDLE Regulations. NORMAN WOLFINGERState Attorney___________________________Tyler J. ChasezAssistant State AttorneyFlorida Bar Number 724832725 Judge Fran Jamieson Way, Bldg DViera, Florida 32940(321) 617-7510Certificate Of ServiceI hereby certify that a true and correct copy of the above and foregoing has been furnished to WHITNEY BOAN, THE LAW OFFICES OF WHITNEY S. BOAN, P.A., 390 NORTH ORANGE AVENUE, SUITE 2100, ORLANDO, FLORIDA 32801by United States Mail/Hand Delivery this _____________ day of ________________________, DATE \@ yyyy 2011._______________________________Tyler J. ChasezAssistant State Attorney ................
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