15306423, 11D-8.002 - Florida Administrative Rules, Law, Code, Register

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Florida Department of State and Division of Library and Information Services

Notice: 15306423

Notice of Development of Rulemaking

Department:

DEPARTMENT OF LAW ENFORCEMENT

Division:

Division of Local Law Enforcement Assistance

Chapter:

IMPLIED CONSENT PROGRAM

Overview

RULE:

11D-8.002	Definitions
11D-8.003	Approval of Breath Test Methods and Instruments
11D-8.0035	Approval of Alcohol Reference Solution and Sources
11D-8.0036	Approval of Dry Gas Standards Source
11D-8.004	Department Inspection and Registration of Breath Test Instruments
11D-8.006	Agency Inspection of Breath Test Instruments
11D-8.007	Approved Breath Test Instruments - Access, Facility Requirements, Observation Period, and Operational Procedures
11D-8.0075	Agency Retention of Records
11D-8.008	Breath Test Operator and Agency Inspector
11D-8.010	Qualifications for Instructors
11D-8.011	Approval of Blood Alcohol Test Methods
11D-8.013	Blood Alcohol Permit - Analyst
11D-8.017	Forms (Repealed)

PURPOSE:

11D-8.002(13): Removes “the Department of Law Enforcement” from the definition of “Authorized Repair Facility” because the Department only performs maintenance on the breath test instruments and does not perform repairs.
11D-8.002(14): Adds the word “human” to the definition of “Blood” to clarify that human blood is the type of blood to be analyzed for proficiency testing.
11D-8.002(20): Names the National Institute of Standards and Technology or international equivalent traceable standard as the “Dry Gas Standard” for compliance with the American Society of Crime Laboratory Directors/Laboratory Accreditation Board definition standards and to be consistent with Rule 11D-8.0036.
11D-8.002(22): Defines “Instrument Registration” to certify that the breath test instrument meets the requirements of Rules 11D-8.003 and 11D-8.004, F.A.C.
11D-8.002(23)-(25), (27)-(28): Renumbers these rule paragraphs due to additions in this rule section.
11D-8.002(26): Defines the “4-year Permit Cycle” for required continuing education requirements, and specifies the initial 4-year anniversary and continuing education dates to clarify and add specificity to the rule.
11D-8.003(1): Makes grammatical changes and updates the type of breath test method to reflect the scientific name “Infrared Spectroscopy”.
11D-8.003(2): Removes the Intoxilyzer 5000 instrument because Florida no longer uses this instrument; the Intoxilyzer 8000 instrument replaces this instrument. Reincorporates the Instrument Evaluation Procedures FDLE/ATP Form 34 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.003(3): Repeals this paragraph because Florida no longer uses the Intoxilyzer 5000 instrument, and renumbers the rule paragraph.
11D-8.003(4): Renumbers the rule paragraph due to a deletion in this rule section.
11D-8.003(5): Renumbers the rule paragraph due to a deletion in this rule section and clarifies that the Alcohol Testing Program is to evaluate software, and requires that an approved make and model of a breath test instrument remains approved until disapproved by the Department.  
11D-8.0035(2)(b): Reincorporates the Certificate of Assurance FDLE/ATP Form 32 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.0036(2): Adds a uniform period of use for dry gas standards to establish consistency due to manufacturer differences with expiration dates.
11D-8.004(1): Requires the inspection of each breath test instrument to establish accuracy and reliability and ensure the registration of the instrument prior to placing the instrument into evidentiary use by an agency.
11D-8.004(2): Defines the purpose of required Department Inspections of the breath test instruments and when these inspections must occur to ensure accuracy and reliability.
11D-8.004(3):  Removes references to the Intoxilyzer 5000 instrument because Florida no longer uses this instrument. Reincorporates the Department Inspection – Intoxilyzer 8000 FDLE/ATP Form 36 and the Department Inspection Report – Intoxilyzer 8000 FDLE/ATP Form 41 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.  The paragraph also repeals the Department Inspection Report FDLE/ATP Form 26 because Florida no longer uses the Intoxilyzer 5000 instrument.
11D-8.004(4): Removes “to register evidentiary breath test instruments” as a duty of a Department Inspector because only the Alcohol Testing Program Manager is authorized to register evidentiary breath test instruments.
11D-8.006(1): Repeals the Agency Inspection Procedures FDLE/ATP Form 16 and the Agency Inspection Report FDLE/ATP Form 24 because Florida no longer uses the Intoxilyzer 5000 instrument. Reincorporates the Agency Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 39 and the Agency Inspection Report –Intoxilyzer 8000 FDLE/ATP Form 40 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.006(2): Removes references to the Intoxilyzer 5000 instrument because Florida no longer uses this instrument, and renumbers the rule paragraphs due to deletions within the rule section.
11D-8.007(1): Adds “Department” as an entity authorized to remove the cover of the Intoxilyzer 8000 evidentiary breath test instrument to perform maintenance and allow the instrument to be shipped for annual inspections because the Department was removed from the definition of an authorized repair facility in Rule 11D-8.002(13), F.A.C.
11D-8.007(4): Removes references to the Intoxilyzer 5000 instrument and repeals the Breath Test Results Affidavit FDLE/ATP Form 14 because Florida no longer uses the Intoxilyzer5000 instrument. Reincorporates the Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37 and the Breath Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.007(5): Removes references to the Intoxilyzer 5000 instrument and repeals the Breath Test Log FDLE/ATP Form 13 because Florida no longer uses the Intoxilyzer 5000 instrument.
11D-8.075(1)-(2): Removes the agency inspection print cards and breath test log record requirements because they are associated with the Intoxilyzer 5000 instrument and Florida no longer uses this instrument.  Restructures paragraphs to place the requirement that agency records are to be accessible to the Department in the paragraph defining those records because this is grammatically correct and in plain language.
11D-8.008(1)(e): Incorporates the Breath Test Permit Application FDLE/ATP Form 8 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.008(2)(c): Incorporates the Breath Test Permit Application FDLE/ATP Form 8 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.
11D-8.008(3): Defines the frequency of continuing education requirements to clarify and add specificity to the rule.
11D-8.008(5): Defines when breath test operator or agency inspector permits expire for failing to complete the required mandatory continuing education to clarify and add specificity to the rule.
11D-8.008(7): Adds requirements to activate an expired permit created in Rule 11D-8.008(5), F.A.C., to obtain a valid breath test operator or agency inspector to clarify and add specificity to the rule.
11D-8.010(2): Adds the rule reference for the maintenance requirements of Breath Test Instructor certification to clarify and add specificity to the rule.
11D-8.011(1): Renumbers the rule paragraphs due to deletions with the rule section and removes Alcohol Dehydrogenase (Enzymatic) as an approved blood alcohol test method because gas chromatography is better forensically in determining blood alcohol levels, and no forensic laboratory uses this older technology.
11D-8.013(1): Incorporates the Application for Permit to Conduct Blood Alcohol Analyses FDLE/ATP Form 4 because Rule 11D-8.017, F.A.C., was repealed and all forms contained within that rule section are being reincorporated throughout Rule 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.  Revises this form to remove Alcohol Dehydrogenase (Enzymatic) as a method used for blood alcohol analyses.
11D-8.0013(3): Removes approval of enzymatic analytical procedures based on alcohol dehydrogenase because alcohol dehydrogenase is not an approved blood alcohol test method pursuant to Rule 11D-8.011, F.A.C.
11D-8.013(3)(g): Removes the requirements for enzymatic analytical procedures based on alcohol dehydrogenase because alcohol dehydrogenase is not an approved blood alcohol test method pursuant to Rule 11D-8.011, F.A.C.
11D-8.013(4): Removes provision that ATP approve any substantial change to a laboratory facility.   FDLE/ATP has never utilized the provision and the statute lacks the legislative authority.to regulate laboratory facilities.
11D8.017: Repeals the various forms in this section.  Repeals all forms associated with the Intoxilyzer 5000 because Florida no longer uses this instrument.  Reincorporates forms associated with the Intoxilyzer 8000 instrument throughout Rule Chapter 11D-8, F.A.C., pursuant with the Joint Administrative Procedures Committee’s recommendation.

SUBJECT:

Implied Consent Program

RULEMAKING AUTHORITY:

316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(a), (b), 327.352(1)(b)3. FS.

LAW:

316.1932(1)(b)2., 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS.

PRINT PUBLISH DATE:

11/21/2014 Vol. 40/227

RELATED STATUTES
AND LAWS:

316.1932(1)(a)2., (f)1., 316.1933(2)(b), 316.1934(3), 322.63(3)(a), (b), 327.352(1)(b)3. FS., 316.1932(1)(b)2., 316.1933(2)(b), 316.1934(3), 322.63(3)(b), 327.352(1)(e), 327.353(2), 327.354(3) FS.

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=11D-8.002&PDate=11/21/2014&Section=1

REFERENCE MATERIALS:

No reference(s).

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