Lanoue v. Florida Dept. of Law Enforcement

• Decision Date: 29 December 1999
• Docket Number: No. 99-260.,99-260.
• Citation: 751 So.2d 94
• Parties: Gary LANOUE, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
• Court: Florida District Court of Appeals

751 So.2d 94

Gary LANOUE, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.

No. 99-260.

District Court of Appeal of Florida, First District.

December 29, 1999.

Rehearing Denied January 27, 2000.

Diane D. Tremore and Chris H. Bentley, of Rose, Sundstrom & Bentley, LLP, Tallahassee, for Appellant.

Joseph S. White and Richard D. Courtemanche, Jr., of Florida Department of Law Enforcement, Tallahassee, for Appellee.

KAHN, J.

In this case, Gary Lanoue appeals an order entered by an administrative law judge (ALJ) dismissing, for lack of standing, his petition challenging rules and policies of the Florida Department of Law Enforcement (FDLE). We affirm in part, reverse in part, and remand for further proceedings.

On February 17, 1998, a police officer stopped Lanoue, who was operating a motor vehicle. The officer arrested Lanoue and, as a result of that arrest, administered a test, pursuant to the implied consent law contained in chapter 316, Florida Statutes, to determine the amount of alcohol in Lanoue's breath. Lanoue gave two breath samples, each of which indicated a breath-alcohol level of 0.09g/210L. Lanoue was charged with the offense of driving under the influence (DUI) and required to give a cash appearance bond. As a result of his DUI charge, Lanoue's driver's license was administratively suspended for six months. Lanoue pled not guilty to the charge and is currently awaiting trial.

In October 1998, Lanoue filed a petition challenging Rule 11D-8.002(1), Rule 118.006(2), and FDLE/ATP Form 16, adopted by reference in Rule 11D-8.003(7), as invalid exercises of delegated legislative authority. These rules implement the implied consent law. Specifically, Rule 118.002(1) provides a definition for "acceptable range" as it relates to the calibration of breath-testing machines:

Acceptable range—Shall mean the observed values must fall within the following ranges at each alcohol target concentration: 0.05 g/210L range is 0.045— 0.055 g/210L; 0.08 g/210L range is 0.075—0.085 g/210L; 0.20 g/210L range is 0.190—0.210 g/210L.

Rule 11D-8.006(2) concerns the alcohol reference solution (ARS) used to inspect the breath-testing machines:

The agency must use alcohol reference solution and/or alcohol stock solution prepared by the Department, or alcohol reference solution and/or alcohol stock solution from a source approved by the Department.

Rule 11D-8.003(7) concerns inspection procedures and incorporates by reference FDLE/ATP Form 16:

When conducting an evaluation for approval of breath test instruments in accordance with this rule, the Department shall conduct a minimum of 50 tests at each concentration for acceptable range, precision, and alcohol-free reading in accordance with the Inspection Procedures FDLE/ATP Form 16 January, 1997, which is approved by the Department and is incorporated by reference.

Lanoue's petition also challenged non-rule policies and statements utilized by FDLE regarding the means, methods, and criteria for analyzing and approving the source of the ARS used to calibrate the breath-testing machines. The petition alleged that these statements and policies had not been adopted or proposed as rules, contrary to section 120.54(1)(a).

Formal hearings took place before the ALJ in November 1998. In an order rendered December 24, 1998, the ALJ found that Lanoue lacked standing to raise the claims set forth in his petition. Specifically, the ALJ, after making extensive factual findings regarding the FDLE's procedures in calibrating breath-testing machines, found that Lanoue had not established a real and sufficiently immediate injury in fact, nor had he shown that he was substantially affected by the challenged rules and policies. In so finding, the ALJ presumed the validity of the challenged rules and then determined that any error in calibrating the breath-testing machines did not affect Lanoue because his recorded breath-alcohol level exceeded the range of variation under the rules even assuming that a low-level ARS was used to calibrate a high-reading machine. We find that the ALJ erred in concluding that Lanoue did not have standing to challenge the existing rules.

Section 120.56(1), Florida Statutes (1997), sets forth the procedures for challenging the validity of a rule or a proposed rule. Section 120.56(1)(a) provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." "In order to meet the substantially affected test ..., the petitioner must establish: (1) a real and sufficiently immediate injury in fact; and (2) `that the alleged interest is arguably within the zone of interest to be protected or regulated.'" Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So.2d 1236, 1237 (Fla. 4th DCA 1995) (quoting All Risk Corp. of Fla. v. State, Dep't of Labor & Employment Sec., 413 So.2d 1200, 1202 (Fla. 1st DCA 1982)); see Cole Vision Corp. v. Department of Bus. & Prof. Reg., 688 So.2d 404, 407 (Fla. 1st DCA 1997)

("A petitioner who establishes a substantial injury in fact that is within the `zone of interest to be protected or regulated' by the promulgating statute or other related statutes meets the standing requirement."); Televisual Communications, Inc. v. State, Dep't of Labor & Employ. Sec., 667 So.2d 372, 374 (Fla. 1st DCA 1995) ("The hearing officer correctly noted that to demonstrate that it is substantially affected by a proposed rule, a party must establish that, as a consequence of the proposed rule, it will suffer injury in fact and that the injury is within the zone of interest to be regulated or protected.").

As explained in more detail below, contrary to the ALJ's determination, Lanoue satisfied both elements of the "substantially affected" test. He suffered a real and sufficiently immediate injury in fact because he was administered a breath test pursuant to the applicable statutes and rules, and he has been charged with a criminal offense (DUI), for which the results of a breath test indicating 0.08 or higher (as his did) constitute prima facie evidence of guilt. Further, this injury is within the zone of interest to be regulated by those statutes and rules.

"To satisfy the sufficiently real and immediate injury in fact element the injury must not be based on pure speculation or conjecture." Ward, 651 So.2d at 1237. Section 316.193(1)(c), Florida Statutes (1997), provides that "[a] person is guilty of the offense of driving under the influence... if the person is driving or in actual physical control of a vehicle within this state and ... [t]he person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath." In this case, Lanoue was arrested and, pursuant to the implied consent law, administered a breath test to determine the amount of alcohol in his breath. He provided two samples, each of which indicated a breath-alcohol level of 0.09 g/210 L. As a result, Lanoue was charged with DUI. If convicted, Lanoue faces a possible fine of no more than $500 and imprisonment for not more than 6 months (assuming this would be his first conviction).

Pursuant to the implied consent law, any person operating a motor vehicle in this state is deemed to have consented to submit to testing to determine the alcohol content of his or her breath if lawfully arrested for any offense committed while driving or in actual physical control of a motor vehicle while under the influence:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances, if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages....

§ 316.1932(1)(a), Fla. Stat. (1997). Section 316.1932(1)(b)1. provides that "[t]he breath-alcohol level must be based upon grams of alcohol per 210 liters of breath." Section 316.1932(1)(b)2. addresses breath-alcohol tests and provides:

An analysis of a person's breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement.

For this purpose, the department may approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid.

Section 316.1932(1)(f)1. also addresses breath-alcohol tests:

The tests determining the weight of alcohol in the defendant's blood or breath shall be administered at the request of a law enforcement officer substantially in accordance with rules of the Department of Law Enforcement. Such rules must specify precisely the test or tests that are approved by the Department of Law Enforcement for reliability of result and

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