DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN GOODMAN,

Appellant,

v.

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

Appellee.

No. 4D14-3263

[May 25, 2016]

Appeal from the Florida Division of Administrative Hearings; L.T. Case 

No. 14-1918RX.

Jane Kreusler-Walsh and Stephanie L. Serafin of Kreusler-Walsh, 

Compiani & Vargas, P.A., West Palm Beach; Brian A. Newman of 

Pennington, P.A., Tallahassee; and Elizabeth L. Parker of Law Office of 

Elizabeth Parker, P.A., Palm Beach Gardens; for appellant.

Ann Marie Johnson, Tallahassee, for appellee.

FORST, J.

Appellant John Goodman was involved in a vehicular collision that 

resulted in the death of another individual. Appellant’s blood was drawn 

after the accident for blood alcohol testing, pursuant to Florida’s implied 

consent statutes. See §§ 316.1932-34, Fla. Stat. (2010). Ultimately, 

Appellant was charged with DUI Manslaughter/Failed to Render Aid and 

Vehicular Homicide/Failed to Give Information or Render Aid. As part of 

his defense, Appellant moved to exclude the blood alcohol test results, 

challenging Florida Administrative Code Rules 11D-8.012 and 11D-8.013 

and the authority of the Florida Department of Law Enforcement (“FDLE”) 

to promulgate these rules relating to the collection and labeling of blood 

for blood alcohol content testing. The trial court deferred ruling on the 

motion and transferred this issue to the Florida Division of Administrative 

Hearings, under the doctrine of primary jurisdiction.1 An administrative 

1 “The doctrine of primary jurisdiction dictates that when a party seeks to invoke 

the original jurisdiction of a trial court by asserting an issue which is beyond the 

ordinary experience of judges and juries, but within an administrative agency’s 
2

law judge (“ALJ”) held an evidentiary hearing and dismissed Appellant’s 

petition, finding that the challenged rules were valid exercises of delegated 

legislative authority, i.e., FDLE has the authority to govern the collection 

of blood and that Rule 11D-8.012 and Rule 11D-8.013 are valid exercises 

of agency rulemaking that ensure reliable blood alcohol test results. 

Subsequently, the trial court denied Appellant’s motion to exclude the 

blood test results. Appellant was ultimately convicted of the above-noted 

charges and sentenced.2 

Appellant now appeals the ALJ’s order and raises three issues: (1) the 

FDLE lacked delegated authority to promulgate the rules at issue; (2) Rule 

11D-8.012 constitutes an invalid exercise of delegated legislative authority 

because it fails to establish standards for the method by which blood is 

collected for chemical analysis; and (3) Rule 11D-8.013 constitutes an 

invalid exercise of delegated legislative authority because it fails to 

incorporate a process to identify and/or exclude unreliable blood samples 

from the testing process. We affirm the first issue without further 

comment. See State v. Bender, 382 So. 2d 697, 699 (Fla. 1980) (finding 

that the pertinent statutes “direct law enforcement to use only approved 

techniques and methods . . . to ensure reliable scientific evidence for use 

in future court proceedings . . . .”). We write to explain our reasons for 

affirming on the other two challenges to the rules.

BACKGROUND

As noted above, Appellant challenges the legitimacy and sufficiency of 

two FDLE regulations: Rules 11D-8.012 and 11D-8.013. These 

regulations govern the collection and storage of blood samples for the 

FDLE’s blood alcohol testing program, as well as regulate those persons 

qualified to test the samples. Rule 8.012 specifies a number of steps that 

must be taken during the blood collection and testing process, including, 

inter alia, that the skin must be cleansed with a non-alcohol antiseptic 

before collection, that the samples “must be collected in a glass evacuation 

tube that contains a preservative,” that “the tube must be inverted several 

times” and labelled properly, and that the samples must be refrigerated if 

they are stored for more than seven days. However, the rule does not set 

standards either for the type and size of needle to be used or the tourniquet 

application protocol to be followed in the collection of a blood sample for 

special competence, the court should refrain from exercising its jurisdiction over 

that issue until such time as the issue has been ruled upon by the agency.” FloSun, Inc. v. Kirk, 783 So. 2d 1029, 1036-37 (Fla. 2001).

2 Appellant’s appeal of his conviction and sentence is proceeding separately.
3

testing. Rule 8.013 lays out the requirements for a Florida blood analyst 

permit, and further sets forth the blood alcohol testing analytical 

procedures. This rule fails to explicitly require the analysts to screen for 

and reject compromised blood samples, or to document irregularities in 

the tested samples.

These deficiencies, Appellant argues, render the regulatory scheme 

insufficient to ensure the reliability of the blood alcohol test results. 

However, as described below, Appellant’s argument is an overbroad

solution in search of a problem that does not exist.

ANALYSIS

A. Challenge to Rule 11D-8.012

“In an appeal from final administrative action, this court reviews the 

administrative agency’s findings of fact to determine whether they are 

supported by competent, substantial evidence.” Dorcely v. State Dep’t of 

Bus. & Prof. Regulation, 22 So. 3d 834, 836 (Fla. 4th DCA 2009). “We 

review the agency’s conclusions of law de novo.” Id. In a challenge to an 

existing rule, the burden is on the petitioner to demonstrate that the rule 

is invalid. See § 120.56(3)(a), Fla. Stat. (2010); State Dep’t of Children & 

Family Servs. v. I.B., 891 So. 2d 1168, 1171 (Fla. 1st DCA 2005).

By law, persons accepting drivers’ licenses in the state are deemed to 

consent to testing of their blood alcohol content. § 316.1932(1)(a)1.a., Fla. 

Stat. (2010). The “underlying purpose of the implied consent law . . . ‘is to 

ensure reliable scientific evidence for use in future court proceedings and 

to protect the health of those persons being tested . . . .’” State v. Miles, 

775 So. 2d 950, 953 (Fla. 2000) (emphasis omitted) (quoting Bender, 382 

So. 2d at 699). Furthermore, compliance with the FDLE regulations gives 

rise to various statutory presumptions for use in court proceedings. When 

a regulation fails to meet the purposes of the implied consent program, 

however, the statutory presumptions do not apply. See id. at 953-55 

(holding that failure to require proper preservation of blood samples 

rendered a prior version of Rule 8.102 “inadequate and inconsistent with 

the purpose of the implied consent law as it relates to ensuring the 

reliability of test results. As such, the State [was] not entitled to the 

presumptions of impairment associated with the implied consent statutory 

scheme.”).

Appellant argues that Rule 8.012 is invalid for failure to specify a 

required needle size for drawing blood. Specifically, he alleges that his 

blood was drawn using a twenty-five gauge butterfly needle, rather than a 
4

“standard” twenty-one gauge straight needle. A twenty-five gauge needle 

is narrower than a twenty-one, and, unlike a straight needle, which injects 

blood directly into the vial, a butterfly needle delivers blood to the 

collection vial via a small length of rubber tubing. Although the standard 

kits used by law enforcement contain the twenty-one gauge straight

needles, the twenty-five gauge butterfly needles can be useful for certain 

patients.

At the proceedings below, the administrative law judge heard testimony 

from seven expert witnesses, all of whom opined on the relative 

effectiveness of this deviation in needle size and type and/or the 

effectiveness of the procedures in place under the current regulations. The 

testimony established that the use of a smaller butterfly needle to draw a 

suspect’s blood can have several effects on a blood sample, such as

increased blood clotting or hemolysis (the release of the contents of red 

blood cells into the surrounding plasma).3 Experts for both parties 

testified, and the administrative law judge found, that the use of a smaller 

needle is more likely to cause blood to clot in the delivery from the donor 

to the test tube in which the blood will be stored (at which point anticoagulation measures are employed to prevent new or further coagulation). 

However, because the administrative law judge found that an accurate 

result being obtained from clotted blood was not “inevitably precluded,” he

determined that Rule 11D-8.102 was valid.

Although the testimony presented at the hearing was subject to 

multiple conclusions on this point, there was sufficient evidence in the 

record to support the ALJ’s findings of fact as to the effect of clotting on 

the accuracy of blood testing. First, the testimony was clear that a smaller 

needle can increase clotting, and that clotting can affect the accuracy of a 

blood alcohol test. However, one expert testified that it is still possible to 

get an accurate result from testing a properly prepared sample even after 

clotting had occurred because the clot does not add or subtract anything 

from the blood that would affect the test.4 He referred to this 

homogenization process as “[v]ery easy” and testified that a clotted sample 

is neither “contaminated” nor necessarily an unreliable input into the 

3 On appeal, Appellant has focused his arguments with respect to Rule 8.012 

solely on the increase in clotting caused by a smaller needle and deficient 

tourniquet usage. 4 See also Derrick J. Pounder & Alan Wayne Jones, Post-Mortem Alcohol —

Aspects of Interpretation, in FORENSIC ISSUES IN ALCOHOL TESTING 65, 66 (Steven 

B. Karch ed. 2008) (“The presence of blood clots will not necessarily have a 

negative influence on the accuracy of the blood alcohol analysis using headspace 

gas chromatography.”).
5

scientific analysis. Further testimony revealed that homogenization was 

necessary only with larger clots, because “small clots . . . would have no 

affect [sic] on the blood alcohol test.” These large clots would be easily 

noticeable, based on the testimony that grossly clotted blood would be 

difficult to move through the needles or pipettes. Regardless of the size of 

the clot, testimony also revealed that standard practice is to “mix[ ] the 

sample” prior to testing, in order to avoid problems such as those created 

by clots. 

The takeaway point from this expert’s testimony is that “a sample 

collected using a 25-gauge butterfly needle [is] valid for blood alcohol 

determination using headspace gas chromatography” so long as proper 

procedures are followed, and that Rule 8.012 is not invalid for failure to 

specify a required needle size for drawing blood. See State v. Friedrich, 

681 So. 2d 1157, 1161-63 (Fla. 5th DCA 1996) (finding that, so long as 

the Intoxilyzer breath tests were made in substantial compliance with the

applicable statutes and rules and the results of the tests “are sufficiently 

reliable so as to be generally acceptable in the scientific community,” the 

court could not “say FDLE is remiss for not adopting rules or protocols in 

this regard”). Thus, the testimony established that clotting is notably 

different than the flaws caused by the lack of refrigeration in Miles, which 

could not be rectified after the fact. Miles, 775 So. 2d at 954-55. This 

testimony was sufficient for the ALJ to find that clotting, even when 

increased by the use of a smaller butterfly needle, does not inherently 

render blood alcohol testing inaccurate, as there were commonly known 

and utilized curative procedures.

B. Challenge to Rule 11D-8.013

Appellant also argues that Rule 8.013 improperly fails to require the 

screening, removal, or documentation of flawed blood samples. FDLE 

responds, and we agree, that Appellant has not established that the Rule 

has failed to ensure the accuracy of the blood testing program. The Rule 

itself, titled “Blood Alcohol Permit — Analyst,” sets out criteria to apply for 

a permit to conduct blood alcohol analyses, including submission of an 

application providing “[a] complete description of proposed analytical 

procedure(s) to be used in determining blood alcohol level.” The 

applicant’s “proposed analytical procedures” are then reviewed by the 

Department.

Appellant called two witnesses who actually conducted blood tests for 

the Palm Beach County Sheriff’s Office. Both testified that they routinely 

documented any irregularities in blood samples. Another expert, who had 

analyzed thousands of blood samples, stated that he always made written 
6

documentation if a sample was clotted and required analysts working 

under him to do the same. That second expert, who was in fact the person 

who tested Appellant’s blood in this case, specifically stated that “any time 

a sample is clotted, it is documented on the analyst’s case file and is also 

reported . . . [a]s additional remarks under the conclusions.”5 Yet another 

expert testified that in his tens-of-thousands of samples tested, he always 

noted when a sample was clotted, but had also always been able to 

properly test the blood after making that notation. This testimony 

supports FDLE’s contention, both below and on appeal, that Rule 8.013 is 

not meant to be the only source of guidance for analysts, but is instead 

meant to supplement and reinforce sound scientific principles and 

laboratory practices. It also supports the ALJ’s conclusion that “analysts 

routinely examine and document the condition of samples as a matter of 

standard laboratory practice [and the] omission of such a requirement 

does not provide a basis to invalidate [Rule 8.013].”

Any attempt by FDLE to regulate for every possible contingency that 

may arise in the collection or testing processes would swiftly devolve into 

a hopeless endeavor and serve only to expand the Department’s 

regulations to epic lengths.6 Furthermore, such over-regulation would run 

the risk of locking in today’s current scientific methodology, preventing the 

evolution and improvement of the system. It would also deprive both the 

State and criminal defendants of the expertise and discretion of the 

analysts, as their training and practical experience is necessary to properly 

address the wide variety of factual scenarios that may arise.7 For instance, 

5 Appellant has failed to provide a copy of his report as part of the record on 

appeal. We therefore do not know whether Appellant’s blood was in fact clotted.

6 No other state appears to have regulated to the extent that Appellant argues 

Florida must. Appellant has not provided, and we have failed to locate, a single 

rule across the country that regulates the exact size of needle that must be used. 

Instead, the rules simply provide general guidance clearly intended to be 

supplemented by standard best practices and medical knowledge. See, e.g., Miss. 

Admin. Code 31-5-2:1750.000 et seq. (2016) (adopting rules regulating blood 

collection without specifying a particular needle size to be used); § 577.029, Mo. 

Rev. Stat. (2016) (requiring use of a “previously unused and sterile needle”); Mont. 

Admin. R. 23.4.220 (2016) (adopting rule with similar requirements to FDLE 

rule); N.H. Code Admin. R. Saf-C 6402.02 (2016) (same); Ohio Admin. Code 3701-

53-05 (2016) (requiring blood to be drawn “with a sterile dry needle”). With 

regards to the screening of blood, we have found only one state—Maine—which 

specifically requires analysts to document clots found in testing samples. See 

10-144 Ch. 270 Me. Code. R. § B(3)(e) (2016). 7 See Edward J. Imwinkelried, Some Preliminary Thoughts on the Wisdom of 

Governmental Prohibition or Regulation of Employee Urinalysis Testing, 11 Nova L. 

Rev. 563, 596-97 (1987) (calling for government regulation of laboratories, but 
7

we would be loath to require the FDLE to mandate a single, one-size-fit-all 

needle choice for blood collection, as the unique facts of each case may 

require a different choice. This determination is best left for the trained 

professionals on the ground, as are many of the choices made in the 

testing laboratories across the State. The rules at issue, when combined 

with basic laboratory practices, are sufficient to protect the safety and 

interests of the court system and defendants alike. See Wissel v. State, 

691 So. 2d 507, 507-08 (Fla. 2d DCA 1997) (holding “that procedures that 

are implicit and incidental to procedures otherwise explicitly provided for 

in a properly adopted rule or regulation do not require further codification 

by a further adopted rule or regulation [and] to hold otherwise belies 

statutory intent . . . .” and that such an argument, “based on the lack of a 

rule or regulation to cover every step of the testing procedures . . . is not 

only speculative and theoretical, but also hyper-technical.”).

CONCLUSION

Appellant has failed to show that Rules 8.012 and 8.013 do not ensure 

the accuracy of the blood testing program. The ALJ’s and trial court’s 

determinations that these rules adequately protect the reliability and 

consistency of blood testing were supported by competent evidence in the 

record on appeal. For these reasons, we affirm the administrative law 

judge’s order.

Affirmed.

WARNER and STEVENSON, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

only going so far as to argue that the laboratories should themselves establish 

specific internal quality control procedures based on more general regulations).