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 MEMORANDUM IN REGARD TO THE DEFENDANT’S MOTION IN LIMINE WITH REGARD TO BLOOD TEST AND BLOOD TEST RESULTSCOMES NOW the State of Florida, by and through the undersigned Assistant State Attorney, and hereby moves this Honorable Court to deny the defendant’s Motion to Exclude Blood Alcohol Test Results in the above-styled case. As grounds therefore, the State would allege:The court should deny the defense’s Motion to Exclude Blood Alcohol Test Results because the rules promulgated by the Florida Department of Law Enforcement (hereinafter FDLE) assure the scientific reliability and accuracy of the blood test results. All challenges brought forth by the Defendant go to weight of the evidence and not to admissibility. Section 316.1933(b), F.S., gives FDLE the authority to promulgate rules to administer blood tests. A legislative delegation to a state agency to promulgate rules requires that the courts not substitute their own construction of a statutory provision for a reasonable interpretation made by the agency. The legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to statute. Chevron v. Natural Resources 104 S. Ct. 2778 (1984). The defense has made no such showing. All requirements set out by FDLE rules were met in this case. The FDLE analyst used a method approved by the Department; the FDLE analyst, Gina Connolly, holds a valid permit to conduct blood alcohol analyses which was issued by the Department; the Department has approved satisfactory techniques or methods as outlined in Rule 11D-8.011 (Gas Chromatography or Alcohol Dehydrogenase) which has been properly promulgated as required by Chapter 120, F.S.; the FDLE analyst Gina Connolly used an approved method, gas chromatography; Rule 11D-8.013 and Rule 11D-8.014 outline the requirements that the Department uses to ascertain the qualifications and competence of the individuals to conduct analysis; the Department has the specific statutory authority (Section 316.1932, F.S.) to issue permits as well as suspend or revoke these permits and Rule 11D-8.013 and Rule 11D-8.014 outline how this will be done; Rule 11D-8.014 and Rule 11D-8.015 outline the requirements that must be met so that termination or revocation does not occur.STATEMENT OF THE FACTSOn March 12th, 2011 the Defendant consumed alcoholic beverages at a house party. He then began driving his truck at a high rate of speed and carelessly. On that date, Deputy Thomas Garrity stopped the Defendant. Blood was drawn by Lee Workman, a registered nurse at the Brevard County Jail, and submitted to FDLE for analysis of its ethyl alcohol content. That analysis yielded results of .136 and .137, both of which are greater than the legal limit of .08. APPLICABLE LAW AND REGULATIONSSection 316.1933(b), F.S., provides that a chemical analysis of a person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approved by the FDLE and by an individual possessing a valid permit issued by the department for this purpose. The Department of Law Enforcement 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. 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 once the state shows that the person conducting the blood alcohol test was properly licensed and substantially complied with applicable regulations. A presumption is created that blood alcohol evidence is admissible. The defendant still has the opportunity to rebut presumptions created by statute; for example, the defendant can challenge Department regulations themselves as being scientifically unsound, but the burden would rest on the defendant to prove its point. Robertson v. State, 604 So.2d 783 (Fla. 1992). The Florida Department of Law Enforcement has promulgated Chapter 11D-8 of the Florida Administrative Code to deal with both breath and blood testing for alcohol in the State of Florida. Sections 11D-8.011, .012, .013, and .014 deal directly with blood alcohol analysis. The defense has outlined the requirements of the law that must be met for the result to be admitted into court.ARGUMENTThe FDLE rules regarding blood testing assure the reliability of the test results and are accepted practices within the scientific community. The defense relies on Miles v. State, 775 So.2d 950 (Fla. 2000), for the presumption that the FDLE rules do not comply with the core policies of the implied consent statutes and the results should be inadmissible. The case at bar before the court is distinguishable from Miles, as that case dealt with the fact that there were no rules for the collection, storage and transportation of the blood sample. The Miles insufficiency was due to there being no rules, not that the rules written created an unreliable result. The Supreme Court did not rule that the blood sample was inadmissible, it stated that the State was not entitled to the presumptions outlined in Section 316.1934, F.S. The Miles decision is not relevant in the case at bar because there are now rules for the collection, storage and transportation of blood samples, unlike at the time of the Miles case. As of July 29, 2001, these rules have been written and incorporated into Rule 11D-8.012. The rules written have specifically addressed the Supreme Court’s findings of the insufficiency of the rules. This rule revision was also properly promulgated in accordance with Chapter 120, Florida Statutes. The proper time to address the insufficiency of a rule is during the promulgation process when a public hearing can be requested to address these supposed insufficiencies.FDLE is not required to write a rule that covers every conceivable issue and every conceivable aspect of testing. In Wissel v. State, 691 So.2d 507, (Fla. 2nd D.C.A. 1997) similar attacks on the rules governing the admissibility of breath test results were deemed speculative, theoretical and hyper-technical.The defense argues that FDLE Rule 11D-8.012(1) is inadequate because it does not provide for any method to determine whether the wipe used to take the sample was in fact non-alcoholic. The purpose of a rule is to require an entity to do something. The purpose of the rule is not to outline how to prove it was done. That is a matter that would be testified to in court by the person cleansing the subject’s skin at the time of the blood collection. The defense argues that FDLE Rule 11D-8.012(2), dealing with the collection of blood in a glass evacuation tube, is scientifically unsound. The rule is scientifically sound because it requires that the person drawing the blood use a glass evacuation tube. It is known in the scientific community that glass evacuation tubes are sterile and by their very nature, are not opened when drawing blood. It is the vacuum inside the evacuation tube that draws the blood into the tube. In the scientific community, the amounts of anticoagulant and preservative found inside the glass evacuation tubes are sufficient enough to preserve the blood and prevent clotting. The tubes are generally 10 ml in size and contain 20-100 mg of sodium fluoride (preservative) and 10-20 mg of potassium oxalate. This is more than sufficient for a valid blood sample to be drawn from a living person. These facts were not presented in Miles. The defense expert in Miles was speaking about the possible effects that can occur when blood is drawn for post-mortem toxicology. The scientific literature supports that the fact that the alcohol concentration in the blood drawn from a living person will not increase. If anything (over 6 ? years), the blood concentration will decrease on average 0.02 to 0.04 g/100 ml. In Miles, the defense expert stated that the alcohol concentration would increase or decrease. This increase is only true of post-mortem samples where bacteria have gotten into the blood as a result of decomposition. The blood obtained in this case was from a living human being, not a post-mortem sample.The language relating to the stopper or label on the collection tube, documentation from the manufacturer or distributor or other evidence was put into the rule and was not deemed legally unsound by the Joint Administrative Procedures Committee which decides whether a rule is promulgated or not. The purpose of the rule is to outline some of the ways that show the presence of the anticoagulant and preservative.The defendant argues that the temperature requirement in Rule 11D-8.012(5) and (6) does not establish any minimum criteria by way of temperature that constitutes refrigeration. Webster defines “refrigerate” as “[t]o make or keep cold or cool, especially for preservation”. The blood sample must only be kept cold or cool. The exact temperature is not important and is therefore not outlined in the rule. Actually, keeping a blood sample refrigerated is a good laboratory practice and not all that important in the reliability of a blood alcohol result. The scientific literature states that after 6 ? years with no refrigeration, the alcohol concentration of a living subject’s blood will only decrease on average 0.02 to 0.04 g/100 ML. The refrigeration part of the rule is for good laboratory practices.The part in the motion that says, “Furthermore, the rules are unsound in that if a blood sample is submitted for analysis within seven days, there is no need for it to be refrigerated and there is no time frame for which it must be received by the lab” is not an accurate or correct statement of Rule 11D-8.012 (5) and (6). The rule specifically states that the blood sample need not be refrigerated (by the law enforcement agency) 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. This means that the blood does not need to be refrigerated by the law enforcement agency if it is submitted to the analyzing laboratory within seven days of collection. The blood sample does not need to be refrigerated during transportation. The laboratory must refrigerate the blood sample when they are not examining or analyzing the blood sample. The rule further goes on to say that the blood samples must be hand delivered or mailed for initial analysis within thirty days of collection, and must be initially analyzed within sixty days of receipt by the facility conducting the analysis. The time limit requirements are thirty days for the law enforcement agency to get the blood sample to the laboratory and sixty days for the laboratory to analyze the blood. The rule goes even further to state the way that the law enforcement agency must submit the blood sample when mailing it. They must submit the sample via overnight delivery. This is to minimize transportation time. The motion states, “Theoretically, a blood sample could remain un-refrigerated for an indeterminate period of time thus compromising the integrity of the sample.” This is not true; the rule specifically states that the blood sample need not be refrigerated if submitted within seven days of collection or during transportation, examination or analysis. Otherwise the blood sample must be refrigerated. The motion states, “Furthermore, the rule states by its plain language that if a blood sample is submitted within seven days, it does not need to be refrigerated at any time. The plain language of the rule only requires that the blood sample be refrigerated if it is not submitted for analysis within seven days. There is no rule governing how the blood sample should be treated once it arrives at the lab for analysis.” This again is not true. The rule specifically states that the blood sample need not be refrigerated if submitted within seven days of collection or during transportation, examination or analysis. Otherwise the blood sample must be refrigerated. The motion states, “[f]urthermore, the rules only provide that the sample must be analyzed within sixty days of its receipt by the laboratory without regard to the date of the blood draw or without regard to the manner in which the sample had been treated prior to receipt by the lab.” This is not true as well. Rule 11D-8.012(1-6) outline all the requirements that must be met when the blood is collected, how it must be treated after collection, during transportation, examination and analysis, how long the law enforcement has to get the blood to the laboratory for analysis (30 days), how long the laboratory has to analyze the blood (60 days) and the requirements for refrigeration after the blood is collected and when refrigeration is not needed (if submitted within seven days of collection and during transportation, examination and analysis). The defendant discusses a lack of rules for the “preservation” of the blood sample subsequent to the initial analysis. FDLE has been given the statutory authority to write rules for the evidentiary blood alcohol result. What happens to the blood sample after its evidentiary analysis is beyond statutory authority. The defense argues that FDLE Rule 11D-8.007 is an improper attempt to state a legal principle. This attack on the classification of the rule is irrelevant to whether FDLE rules are sufficient to assure a blood test’s reliability. It merely states a correct legal principle. Rule 11D-8.011 states the specific methodology which a blood analyst must use when analyzing blood alcohol samples. These are specifically gas chromatography or alcohol dehydrogenase. If an analyst submits a procedure for approval that does not use either one of these methods, their procedure would NOT be approved. Each procedure must meet the requirements of Rule 11D-8.013(3)(a-g). This section specifically outlines the requirements of the written procedure. If any section of this rule is not outlined in the analyst’s written procedure, it will not be approved. No criteria except that which is outlined in this section of the rule is reviewed. Also, there is the clause for procedures approved before this rule change, which became effective November 5, 2002. The rule states “Approval of blood alcohol analysis methods and procedures shall be based on rule requirements in effect at the time they were submitted for approval.” See Rule 11D-013(5), approving the analytical procedures of the analyst. The purpose of Rule 11D is to ensure that the person has some education in the field of chemistry. A degree is not required. For colleges, a grade of C- or better is required for a person to have been considered as “completing” the course. This is well known in the scientific community.The defense alleges that the proficiency testing for applicants for a permit is insufficient and not scientifically sound. Single blind testing for the blood alcohol proficiency test process outlined in the rules is scientifically sound. First of all, the analyst is required to submit the results of the proficiency test within a required time frame. If the process was double blind, the results may not be received within the required time frame. The analyst does not know the alcohol result, only the fact that it is a proficiency sample. Examples of other states or agencies that perform the same type of proficiency testing are USDOT and Pennsylvania. The rule indicating the use of reference laboratories is to increase the statistical database using other analysts from around the country who perform the same type of analyses. Using reference laboratories does not broaden the range, but actually it can decrease the range of acceptability. The rule allowing a bye is for analysts that may have an emergency prohibiting them from participating. Examples of byes being requested include serious illness, childbirth, etc… Most analysts do not use their bye at all. The main reason for this is that they do not know during the year when they actually may need it. The defense argues this provision (bye) is also combined with the provision that an analyst may incorrectly determine one proficiency sample per year and still retain his permit. This is not correct. Rule 11D-8.014(3) states that, “Upon notification by the Department that an analyst has failed to satisfactorily determine the blood alcohol level on any set of proficiency samples, the analyst shall be required to satisfactorily determine the blood alcohol level of a second set of five proficiency samples provided by the Department.” Five is all of the proficiency samples created for that cycle. This is to ensure that the there was no error (sample mix up, faulty sample, etc) provided by the Department. The analyst is required to correctly analyze all of the samples for that particular cycle. These samples are immediately mailed to an analyst that has failed the cycle. Rule 11D-8.014(4) states that, “Upon notification by the Department that an analyst has failed to satisfactorily determine the blood alcohol level on a second set of proficiency samples, the analyst shall not perform any duties authorized by the analyst’s permit until the analyst satisfactorily determines the blood alcohol level of a subsequent set of proficiency samples provided by the Department.” The Department can also take action as outlined in Rule 11D-8.015. CONCLUSIONThe Florida Department of Law Enforcement has promulgated Chapter 11D-8 of the Florida Administrative Code to deal with both breath and blood testing for alcohol in the State of Florida. These rules are scientifically accepted and assure the accuracy of the blood test results. All of the defendant’s attacks are speculative and theoretical as well as hyper-technical and in no way show that the blood test results in this case are not reliable. The fact that the defendant would like the FDLE rules to implement more controls does not negate the scientific reliability of the blood test results in this case. The Court must grant deference to the administrative authority given to FDLE and find that the results are admissible. WHEREFORE, based on the foregoing, the State of Florida respectfully requests that this Court deny the Defense Motion in Limine in Regard to Blood Test and Blood test Results. RESPECTFULLY SUBMITTED this __________ day of _____________, 2011.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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