DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

HOA VUONG, MARK PEBLEY, ROBERT McKENNA, PETER MURPHY, 

JULIO REINA, RHONDA SIMMONS, ZACHARY SCUDERI, CHARLES 

ROLLO, NICOLLE MAHADY, JASON FEINSOD, ALAN HERNANDEZ, 

ROSLYN HOECKER, MARY BARUCH, ANA BLUMENFELD, DANIEL 

KING, LEO CORDERY, BEATRIZ VALLEJO, MINA ARBUCKLE, 

MELISSA HARTMAN, MARY DISCHINO, DEANNE ARCODIA, 

CHRISTINA WLODARCZYK, DONALD KEHR, JONATHAN NOLLI, 

MARKUS STUMPER, ISMAEL OLIVAN RODRIGUEZ, DANIELLE 

VERGA, KATHRYN MURPHY, DAVID CORNELL, NICKOLAS LONG, 

LINDSEY GABOFF, PATRICK MURPHY, DUSTIN WALKER, JEFFREY 

TYSON, JAMES PASA, CATHERINE HAMPTON, LUIS CRUZ, DANIEL 

CHAN-PAREDES, ANTONIO FONROSE, ANNA BERGMAN, ANNA 

YURTAYEVA, on behalf of themselves and other Palm Beach County DUI 

Defendants,

Appellants,

v.

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Appellee.

No. 4D13-2199

[October 22, 2014]

Appeal from the State of Florida, Division of Administrative Hearings; 

L.T. Case No. 12-3898 RX.

Brian P. Gabriel of Gabriel & Gabriel, LLC, Jupiter, for appellants.

Ann Marie Johnson, Tallahassee, for appellee.

STEVENSON, J.

The instant appeal arises from a chapter 120 rule challenge to Florida 

Administrative Code Rules governing the Florida Department of Law 

Enforcement’s approval and oversight of breath test instruments. 

Appellants contended that the rules constitute an invalid exercise of 

delegated legislative authority. The administrative law judge (ALJ) rejected 

appellants’ arguments. We affirm. 
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Appellants are individuals charged with DUI after submitting to a 

breath test on the Intoxilyzer 8000 breath instrument. Appellants 

submitted to a breath test pursuant to Florida’s implied consent law. The 

implied consent law requires that drivers submit to an “approved” test. 

See § 316.1932(1)(a)1.a., Fla. Stat. (2012). The legislature has charged 

Florida’s Department of Law Enforcement (FDLE) with responsibility for 

approving breath test instruments; for “regulation of the operation, 

inspection, and registration of breath test instruments utilized” under the 

driving under the influence statutes; and for promulgating rules necessary 

for the administration and implementation of its obligations. See § 

316.1932(1)(a)2., Fla. Stat. (2012). Pursuant to the authority granted it, 

FDLE approved the Intoxilyzer 8000 for evidentiary use. See Fla. Admin. 

Code R. 11D-8.003(2). 

Attempting to demonstrate the inadequacy of the rules, appellants 

presented evidence that, after the November 2002 amendment of rule 11D8.003 approving the Intoxilyzer 8000 but before the Intoxilyzer 8000 was 

actually put into use in Florida, difficulties during testing prompted the 

manufacturer to determine it was necessary to drill a hole in the 

instrument’s exhaust purge valve. The exhaust purge valve is utilized only 

during simulation testing and is not involved in an actual breath test. The 

Intoxilyzer 8000 instruments put into use in Florida come from the 

manufacturer with the hole drilled in the exhaust purge valve. FDLE did 

not “reapprove” the Intoxilyzer 8000. Appellants also presented evidence 

that, in 2007, there were documented problems with the calibration of the 

flow sensor on some instruments. Consequently, in late 2010/early 2011, 

FDLE began using a flow meter to test calibration of the flow sensor. 

Effective in 2011, FDLE’s internal guidelines require calibration of the flow 

sensor as part of FDLE’s annual inspection.

The gist of appellants’ claims was that Florida Administrative Code 

Rules 11D-8.003, 11D-8.004, and 11D-8.006 are vague, do not provide 

sufficient guidelines or standards, and/or vest unbridled discretion in 

FDLE. Appellants complained that the rules do not require breath 

instrument manufacturers to provide FDLE notice of modifications to an 

already approved model of breath instrument; do not require FDLE to 

retest or reapprove breath instruments modified by the manufacturer; and 

do not set forth criteria or guidelines addressing the retesting or reapproval 

of modified instruments. They also complained of the rules’ failure to 

specifically require or address inspection and/or calibration of the flow 

sensor on the breath instrument. 

The burden of proving the invalidity of a challenged rule is on the 
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petitioner. See § 120.56(1)(e), (3), Fla. Stat. (2012). Having heard the 

evidence, the ALJ concluded petitioners had failed to meet this burden. 

With regard to the drilling of the hole in the exhaust purge valve, the ALJ 

found the evidence failed to establish the drilling of the hole affected breath 

test results “in any manner” or rendered the results unreliable. The ALJ 

similarly concluded the evidence was insufficient to establish that “the 

scientific reliability of reported breath test results is related to the function 

of an instrument’s flow sensor” as “[t]he evidence establishes that the 

instrument will not report results of a breath alcohol test if the quantity of 

air provided by a test subject is insufficient.” 

Finding the ALJ’s factual findings to be supported by competent, 

substantial evidence and no error in his legal conclusions, we affirm the 

order appealed. See Volusia Cnty. Sch. Bd. v. Volusia Homes Builders 

Ass’n, 946 So. 2d 1084, 1089 (Fla. 5th DCA 2006) (holding hearing officer’s 

legal conclusions are reviewed de novo, while factual findings must be 

accepted if supported by competent, substantial evidence). Appellants’

reliance on the decisions in State v. Flood, 523 So. 2d 1180 (Fla. 5th DCA 

1988), State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992), and State v. 

Miles, 775 So. 2d 950 (Fla. 2000), is not persuasive. 

Flood and Polak were not rule challenges. In both cases, police modified 

the breath instrument and the trier-of-fact concluded the modification was 

“substantial” or rendered the instrument a “different machine.” See 598 

So. 2d at 153; 523 So. 2d at 1181. Here, the manufacturer made the 

decision to modify the Intoxilyzer 8000 before any instruments were put 

into evidentiary use in Florida, and the ALJ found the evidence failed to 

prove the complained-of deficiencies had impacted the reliability of the 

breath tests. Miles did hold that the rules governing DUI blood alcohol 

sampling were inadequate as they failed to contain any provisions 

addressing preservation of the blood sample pending testing, and all the 

experts agreed that proper preservation was essential to quality control. 

See 775 So. 2d at 955. Here, however, the significance of the drilling of 

the hole in the exhaust purge valve and calibration of the flow sensor was 

disputed, and the ALJ found the evidence failed to establish the 

complained-of deficiencies had any impact on the reliability of breath 

alcohol tests.

Having carefully reviewed the record and considered all arguments 

raised, the order on appeal is affirmed.

Affirmed.

WARNER and GERBER, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.