The Alcohol Testing Program Rules: An 11D-8 Quick Reference

This is a one place summary of the Chapter 11D-8 scheme that Florida breath and blood cases turn on, written for lawyers and meant for fast reference at a hearing. It is drawn from Appendix C of The Florida DUI Trial Manual.

The organizing point to carry into any breath case is the one the predicate chapter makes: the State earns the statutory presumption of impairment only by showing substantial compliance with these rules. A material departure does not merely argue to the jury. It strips the presumption and forces the State to prove the test is reliable the hard way.

The two inspection cycles

• Agency inspection, performed on a monthly basis by a permitted agency inspector, verifying the machine against reference standards.
• Department inspection, performed on an annual basis by the state program itself, a fuller workup of the machine.
• A material failure on either cycle, or an inspection missing from the records, is a compliance issue; the inspector’s written remarks often say more than the boxes on the form.

The test sequence and its checks

• The operator conducts a continuous observation period before the subject test (the interval the rule sets aside to ensure nothing entered the mouth), and the period is meaningful only if it was truly continuous.
• The machine’s accuracy is checked during the sequence against a reference solution or dry-gas standard, and the control result must fall within its tolerance; the alcohol-free portion of the sequence must read a true zero.
• The two subject breath samples must agree with each other within a fixed tolerance.
• The machine is tested for its response to an interferent and to radio-frequency interference, and it is supposed to detect and handle each.

The numbers to confirm

• Observation period: the continuous pre-test interval (commonly stated as twenty minutes).
• Control-test tolerance: the reference solution or gas must read within its set window (commonly stated as plus or minus five percent, and, for the dry-gas standard, a stated range around the target).
• Duplicate-agreement tolerance: the two subject samples must agree within a fixed value (commonly stated as 0.020 g/210L).
• Breath-sample criteria: the minimum flow, the minimum time, the minimum volume (commonly stated as one and one-tenth liters), and the flow-stability (slope) requirement.
• Upload and memory: the results must be uploaded to the state program within a set number of business days or the machine is disabled, and the machine holds a limited number of tests in memory.
• Removal and notification: on a failure, the machine is to be removed from evidentiary service and the department notified on the rule’s timetable.

The forms and the approved sources

• The operator’s affidavit of the breath test (commonly a numbered department form).
• The agency-inspection report and the annual department-inspection report (commonly numbered forms).
• The certificate of assurance for the alcohol reference solutions and the certificate of analysis for the dry-gas standard, each governed by its own approved-source rule within the chapter (the reference-solution and dry-gas approved-source rules).
• The removal-from-service, return-to-service, and notification duties (the removal rule).

The electronic records the rules generate

The machine and the state program keep electronic data beyond the printed card, all of it reachable by public-records request as the discovery chapter explains: the subject-test data (every sequence, including aborted ones), the agency- and department-inspection data with remarks, and the login, control-test, diagnostic-test, and cylinder-change records, together with the consolidated archive the program compiles for the machine. The breath-records chapter reads these for the anomaly signatures; this reference is only the map of what exists.

The predicate, in one line

Substantial compliance with the rules above brings the statutory presumption; a material departure removes it and puts the State to the traditional scientific predicate. Match the departure you can prove to that consequence, because the value of a compliance defect is measured in the presumption it strips, not in the jury argument it supplies.

How to read the rule itself, and what its silences mean

Everything above tells you what the rule says. This section is about something else, and once you have seen it you will not read an administrative rule the same way again. It comes from the State’s own side, from the chapter in the standard forensic reference that teaches breath programs how to answer the defense, and it is not hidden. It is published advice on how to draft the rules you are about to attack.

The advice runs on two axes, and both matter to you.

Where a requirement lives. The State’s authority tells breath programs that their detailed protocols should sit in the program’s own standard operating procedure manuals and not within the administrative rules that govern whether the evidence comes in. His stated reason is practical and, on its face, fair: manuals are easier to revise than rules. He repeats the point later as a general principle covering the whole catalogue of defense challenges, saying that the rules should specify only the minimum requirements and that extra detail should be left to the policy manuals. Read those two sentences next to the predicate on the previous page and the consequence is plain. Substantial compliance with the rule is what carries the presumption. A requirement that lives in a manual instead of the rule is a requirement whose breach does not strip the presumption. So the thinner the rule, the fewer the places the State can fail in a way that costs it anything.

This is not an accusation, and do not make it one. It is a drafting philosophy with a legitimate reason attached, and it is stated in the open. What it gives you is diagnostic. When the State’s witness answers a compliance question with the observation that the rule does not require that, you now know the answer may be incomplete rather than wrong. The rule may not require it because the field’s own literature advised moving it into a manual. So ask the follow-up: the rule does not require it, but does your program’s standard operating procedure require it, and may we see the procedure. The rule’s silence is a pointer to a document, and that document is discoverable. A program that departed from its own written procedure has a problem in front of a jury even where it has no problem with the presumption.

What the rule is drafted about. This is the subtler one and it is the more powerful. Discussing the temperature of the reference solution, Gullberg advises that rules requiring a specific temperature be carefully written to minimize legal challenge, and then says exactly how. They should be written so that the requirement is that the measurement result from a certified thermometer falls within an expected value, and not that the solution itself must exist at a specified temperature.

Sit with the difference, because it is the whole ballgame. A rule written about the world says the solution shall be at thirty-four degrees. To comply, the solution has to have been at thirty-four degrees, and that is a fact, and facts can fail and can be shown to have failed. A rule written about the reading says a certified thermometer shall read within a window around thirty-four degrees. To comply, a thermometer has to have read it, and the reading is in the record, and the record says what it says. The second rule is satisfied by its own paperwork. The underlying physical fact has been quietly removed from the elements of compliance, and with it every argument that the fact was not so.

There is a third statement of the same idea, and it is the one with teeth, because it names its target. Discussing how programs should handle the defense that reads the machine’s error and repair history, the same author writes that carefully worded administrative rules which clearly define a complete and valid breath test document as the sole required basis for evidence admissibility will mitigate much of that challenge.

The sole required basis. Follow what that would do. A rule drafted that way makes one piece of paper, the printout from this test, the entire showing required to get the number in front of a jury. The maintenance history stops mattering to admissibility. So does the repair record, the error log, the inspection remark, the machine’s whole past. None of it is gone, and none of it becomes inadmissible; it simply stops being something the State has to survive in order to have the number admitted, and drops to weight. That is not a small adjustment. It is the records attack in the breath-records chapter, moved by drafting from the door of the courtroom to the argument inside it.

So read chapter 11D-8 with that sentence in your hand and find out what Florida in fact requires. If the rule conditions admissibility on the document alone, then the records fight is a weight fight, and you should know that before you build a suppression motion around a repair history and lose it on a ground that has nothing to do with your facts. If the rule conditions admissibility on more than the document, on the inspections having happened, on the machine having been in compliance, on the standards having been approved, then each of those is a place the State can fail in a way that costs it the presumption, and the records are the proof. Either way you are better off knowing which rule you are living under, and the answer is in the text of the rule rather than in what anyone tells you at a hearing.

Along the same line, and stated just as plainly, he warns programs that the rules must not be worded in such a way that strict compliance is impossible.

So when you read chapter 11D-8, read it twice. The first pass is for what it requires. The second pass is for its architecture, and the second pass is where the motions come from. Take each requirement and ask two questions. First, is this in the rule, or has it been moved somewhere that does not carry the presumption, and if it has been moved, where did it go and can I have it. Second, is this requirement written about a fact in the world or about a number on a page. Where it is written about a fact, the State has to prove the fact, and the fact is contestable. Where it is written about a reading, the State proves it by producing the reading, and your attack has to move upstream to whether the reading itself was honest, whether the device that produced it was in calibration, and whether anyone verified it against anything outside the record.

None of this is a defect in Florida’s rule in particular. It is the ordinary result of a rule being drafted by the people the rule governs, with published guidance on how to draft it so it survives challenge. The lawyers who lose these motions are the ones who read the rule as a description of what the program does. The rule is not that. It is a description of what the program must be able to show, which is a smaller thing, and the gap between the two is where this book lives.

The blood collection rule, and the two things that are not in it

Everything above is breath. The blood side of chapter 11D-8 is a single rule, it is short, and as of this writing it has not been amended since 2001. Rule 11D-8.012, Blood Samples, Labeling and Collection, runs to seven subsections.

• (1) The antiseptic. The skin puncture area must be cleansed with an antiseptic that does not contain alcohol.
• (2) The tube. The sample must be collected in a glass evacuation tube containing a preservative such as sodium fluoride and an anticoagulant such as potassium oxalate or EDTA. The same subsection then tells the State how little it needs to prove that: compliance “can be established by the stopper or label on the collection tube, documentation from the manufacturer or distributor, or other evidence.”
• (3) The mixing. Immediately after collection the tube must be inverted several times to mix the blood with the preservative and anticoagulant.
• (4) The label. The tube must be labeled with the name of the person tested, the date and time the sample was collected, and the initials of the person who collected it.
• (5) Refrigeration. Not required if the sample is submitted for analysis within seven days of collection, or during transportation, examination, or analysis. Otherwise the sample must be refrigerated, except that refrigeration is not required after the initial analysis.
• (6) The deadlines. Hand delivery or mailing for initial analysis within thirty days of collection, and initial analysis within sixty days of receipt by the facility conducting it. A sample not hand-delivered must go by priority mail, overnight delivery, or an equivalent service.
• (7) The reliability clause. “Notwithstanding any requirements in chapter 11D-8, F.A.C., any blood analysis results obtained, if proved to be reliable, shall be acceptable as a valid blood alcohol level.”

That is the whole rule. Now the two things that are not in it, because here the silences are worth more than the text.

The collector is not in the rule. Nothing in 11D-8.012 says who may hold the needle. The closest it comes is subsection (4), which wants the collector’s initials on the label so the tubes can be told apart. The qualification requirement is statutory, and it sits in section 316.1932(1)(f)2.a. for the ordinary implied-consent draw and in section 316.1933(2)(a) for the draw after a death or serious bodily injury, each naming the same six categories of person who may withdraw blood at an officer’s request.

Read that against the thin-rule principle in the section above and, for once, the structure runs the defense’s way. A requirement that lives in a manual instead of a rule is a requirement whose breach costs the State nothing. A requirement that lives in the statute instead of the rule is the opposite. Subsection (7) forgives failures of “any requirements in chapter 11D-8,” and the collector requirement was never a requirement of chapter 11D-8, so subsection (7) does not reach it. Neither does the statutory safe harbor, which forgives insubstantial differences in methods and techniques and insubstantial defects in the analyst’s permit, all of which are about the analysis rather than the draw. The collector’s qualification is the one requirement on the blood side that the State cannot answer by proving the number turned out to be reliable anyway. Chapter 9 works the argument and Appendix G carries the objection language, which matters more here than usual, because the generic objection loses the point before it is made.

The rule’s own escape is in it. Subsection (7) is the thin-rule philosophy written into the rule’s own text. Six subsections set requirements and the seventh says that failing any of them settles nothing, so long as the result can be proved reliable. Chapter 9 explains why that is better understood as the State’s assignment than as the State’s escape. Know it is there before you file, because the State will quote it whether or not you do.

The cost of the thin rule, and the case that shows it

The advice above has a consequence its author does not draw, and the same chapter supplies the example. Push the detail out of the rule and into the manuals, and the manuals become load-bearing. A program that has moved its requirements into standard operating procedures has to have those procedures in fact, in writing, approved, current, and produced on request. The strategy that shields a program from rule-compliance attacks hands the defense a different attack, on whether the procedures exist and whether the program followed them.

Massachusetts is the illustration, and it is Gullberg who reports it. In a 2017 trial-court case there, the defense mounted an extensive challenge to the state’s breath program. On the science and the software it mostly lost, and the losses are worth knowing precisely because they show what did not work: the court found the machine’s software, though not perfect, adequate and reliable for its purpose, and it rejected challenges based on interfering substances and on the validity of the blood-breath ratio. The defense also attacked four features of the state laboratory’s practices, accreditation, measurement uncertainty, measurement traceability, and the documentation of the program’s protocols. It lost the first three.

It won the fourth. The court found that the laboratory did not have adequate and approved protocols and records for its analytical practices, ordered that the program become accredited, ordered that its protocols and records be kept available on a website, described the laboratory as a program in progress, held that results from the machine’s June 2011 introduction forward were not admissible, and imposed seven requirements the program had to satisfy before its breath results could be used in court. Gullberg’s own account of what followed is the part to sit with. He writes that as a result of the lack-of-protocols issue, most courts in that state were not admitting breath test results as of his writing, and that the dispute continues.

So a state’s entire breath program was put out of the evidence business, for years, and the ground was not physics. Nobody proved the machine was wrong. The program could not produce adequate, approved, documented procedures for what it did. That is the exact vulnerability the drafting advice on the previous pages creates: a program told to keep its rules minimal and put the detail in revisable manuals is a program whose manuals had better be in order, because the manuals are now where the requirements live, and a court that goes looking for them expects to find them.

Handle this with real care before you use it. It is a trial-court decision in another state, it binds nothing here, it is summarized in a State author’s own words rather than read from the opinion, and the account of what Massachusetts courts were doing afterward was current as of roughly 2019 and may not be current now. Read the opinion before you cite it, and check what became of it. What it is good for, right now, is a question to ask about your own case. The rule is thin, and the detail lives somewhere. Where does it live, is it written down, was it approved, and can they produce it. If the answer to the last three is not plainly yes, the State’s own literature has already published what that costs.

Related

The case law and the scientific literature behind these arguments are collected in the Florida DUI Reference. The administrative hearing procedure, which is a different rule chapter and is currently the subject of its own rulemaking, is covered on the formal review hearing page.