15902003, 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: 15902003

Notice of Proposed Rule

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-8.004	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11D-8.017	Forms (Repealed)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(12): Adds the phrase “on a single Form 38 affidavit” to the definition of “Approved Breath Alcohol Test” to clarify and add specificity to the rule.
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): Add 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-8.004(1): Requires the inspection of each breath test instrument to establish accuracy and reliability and ensure the registration of the instrument prior 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-8.006(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 authorized entity 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 Intoxilyzer 5000 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 a breath test operator or agency inspector permits expires 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 permit 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): Incorporate 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.

SUMMARY:

Adds the phrase “on a single Form 38 affidavit” to the definition of “Approved Breath Alcohol Test”; removes “the Department of Law Enforcement” from the definition of authorized repair facility; adds the word “human” to the definition of blood; names the National Institute of Standards and Technology or international equivalent traceable standards as the “dry gas standard”; defines “instrument registration”; defines the “4-year permit cycle” and specifies the initial 4-year anniversary; removes the Intoxilyzer 5000 instrument; reincorporates the Instrument Evaluation Procedures, FDLE/ATP Form 34; clarifies that the Alcohol Testing Program is to evaluate software and requires that an approved make and model breath test instrument remains approved until disapproved by the Department; reincorporates the Certificate of Assurance FDLE/ATP Form 32; requires that each breath test instrument shall be inspected; defines the purpose of required Department inspections of the breath test instruments and when they must occur; reincorporates the Department Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 41; repeals the Department Inspection Report FDLE/ATP Form 26; repeals the Agency Inspection Procedures FDLE/ATP Form 16 and the Agency Inspection Report FDLE/ATP Form 24; reincorporates the Agency Inspection Procedures – Intoxilyzer 8000 FDLE/ATP Form 39 and Agency Inspection Report – Intoxilyzer 8000 FDLE/ATP Form 40; adds “Department” as an authorized entity to remove the cover of the Intoxilyzer 8000 evidentiary breath test instrument; repeals the Breath Test Results Affidavit FDLE/ATP Form 14; reincorporates the Operational Procedures – Intoxilyzer 8000 FDLE/ATP Form 37 and the Breath Test Affidavit – Intoxilyzer 8000 FDLE/ATP Form 38; repeals the Breath Test Log FDLE/ATP Form 13; removes the agency inspection print cards and breath test log record requirements; incorporates the Breath Test Permit Application FDLE/ATP Form 8; defines the frequency of continuing education requirements; defines when a breath test operator or agency inspector permit expires for failing to complete the required mandatory continuing education; adds the requirements to activate an expired permit to obtain a valid breath test operator or agency inspector permit; adds the rule reference for the Breath Test Instructor certification requirements to maintain instructor certification; removes alcohol dehydrogenase (enzymatic) as an approved blood alcohol test method; incorporates the Application for Permit to Conduct Blood Alcohol Analyses FDLE/ATP Form 4; removes the requirements for and approval of enzymatic analytical procedures based on alcohol dehydrogenase; removes approval of substantial changes to a laboratory facility by the Department; repeals all forms listed in Rule 11D-8.017 and incorporates active forms throughout the rule chapter; makes grammatical revisions; and renumbers paragraphs.

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:

4/16/2015 Vol. 41/74

COMMENTS:

From 4/16/2015 To 5/7/2015 (21 Days)
The public comment period for this notice has already expired.

REFERENCE MATERIALS:

No reference(s).

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