STATE OF FLORIDA, APPELLANT,
v.
DEANNA IRIZARRY, APPELLEE
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A breath test result affidavit prepared pursuant to section 316.1934(5), Florida Statutes, is admissible in evidence without further proof of maintenance, as the statute supersedes prior case law requiring independent proof of accuracy.
[1] A breath test result affidavit prepared pursuant to Florida Statute 316.1934(5) is admissible in evidence without further proof of maintenance, provided the affidavit dis…
[2] The legislature amended Florida Statute 316.1934 by adding subsection (5) to address the admissibility of breath test result affidavits.
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Join FLexlaw to unlock all legal intelligenceThe State sought to introduce a breath test result affidavit in a DUI case. The trial court denied the State's motion in limine, finding the affidavit…
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KLEIN, Judge.
Defendant was arrested for DUI in June of 1996. After denying the State’s motion in limine to introduce into evidence a breath test result affidavit prepared pursuant to section 316.1934(5), Florida Statutes (1995), the county court certified the following question as involving a matter of great public importance:
IS A BREATH TEST RESULT AFFIDAVIT PREPARED FOR USE IN ACCORDANCE WITH FLORIDA STATUTE 316.1934(5) ADMISSIBLE IN EVIDENCE WITHOUT FURTHER PROOF OF MAINTENANCE, OR MUST THE STATE INDEPENDENTLY PROVE PROPER MAINTENANCE OF THE INTOXILYZER?
Our review of questions certified by county courts to be of great public importance is discretionary under Florida Appellate Rule 9.030(b)(4)(B). Rule 9.160(e)(2) requires that we “by order accept or reject jurisdiction” of the appeal. In its order certifying the question, the trial court explained that there was conflict between the decisions of circuit courts, sitting in their appellate capacity, on this issue.
County court judges occasionally certify questions with no explanation as to why they are of great public importance. Sometimes they involve issues which arise almost exclusively in county court, and because of our unfamiliarity with these areas of the law, we are unable to discern from the question itself why it is important. An explanation might well persuade us to accept an appeal when we would otherwise reject it. We appreciate the explanation, accept jurisdiction, and answer in the affirmative.
After State v. Donaldson, 579 So. 2d 728 (Fla.1991), holding that there must be evidence that a breathalyzer test machine has been calibrated, tested and inspected, the legislature amended section 316.1934, Florida Statutes, effective July 1, 1991, adding subsection (5), see eh. 91-255, § 4, at 2451, Laws of Fla., which now provides:
An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by the Department of Law Enforcement that was held by the person who performed the test; and (e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument. The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.
In implementing section 316.1934(5), the Department of Law Enforcement has promulgated FDLE/ICP Form 14, see Fla. Admin. Code R. 11D8.017(14), the form which the state sought to introduce. The department rules require an annual inspection of breath test instruments by the department for accuracy and alcohol-free reading, see Fla. Admin. Code R. 11D-8.005, and a monthly inspection by the agency, see Fla. Admin. Code R. 11D-8.006. The agency inspection must be done “at least once each calendar month,” defined to mean “From the first day of the month through the last day of the month.” Fla. Admin. Code R. 11D-8006(1). The rule also requires that a breath test log of every breath test be maintained and inspected monthly by a technician. Fla. Admin. Code R. llD-8.006(2)(a), (c).
The trial court determined that the form affidavit was insufficient unless the State independently proved proper maintenance of the intoxilyzer. The trial court relied on an unpublished opinion of the Palm Beach County Circuit Court, sitting in its appellate capacity, holding under Donaldson that unless the affidavit includes the fact that the last inspection showed that the intoxilyzer tested accurately, the State has to present evidence of accuracy.
The defendant makes no argument that the statute is unconstitutional, but rather relies entirely on Donaldson.
Because Donaldson has been superseded by the statute, and the affidavit complies with the statute, we conclude that the affidavit was admissible without proof that the testing of the machine showed it to be accurate.
STONE, C.J., and GLICKSTEIN, J., concur. . In Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA), rev. denied, 659 So. 2d 1086 (Fla.1995) we denied certiorari review of a circuit court appellate decision holding that the statute does not violate the confrontation clauses of the federal and Florida constitutions or improperly shift the burden of proof.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dep't of Hwy. Safety & Motor Vehicles v. Mowry, 794 So. 2d 657 (Fla. 5th DCA 2001)…evidence that the monthly maintenance on the Intoxilyzer was conducted with alcohol reference solution from an approved source in compliance with rule 11D-8.0035 in order to establish a prima facie case for license suspension. See State v. Irizarry, 698 So. 2d 912 (Fla. 4th DCA 1997) (holding that a breath test result affidavit was admissible in evidence without the state having to provide independent proof of the proper maintenance of the Intoxilyzer). Since the burden is not on the Department, and in light…
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Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006)…urt properly admitted the affidavit as a public records hearsay exception, pursuant to sections 316.1934(5) and 90.803(8), Florida Statutes, and based on our decisions in Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA 1995), and State v. Irizarry, 698 So. 2d 912 (Fla. 4th DCA 1997). Petitioner counters that the circuit court’s ruling on the breath test affidavit violated a clearly established principle of law in that it conflicted with the United States Supreme Court’s decision in Crawford v. Washington. T…
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State v. Belvin, 986 So. 2d 516 (Fla. 2008)…, concurs. . Magruder v. Commonwealth, 275 Va. 283, 657 S.E. 2d 113 (2008) (holding under an analogous statute that defendants waived their opportunity to cross-examine analysts). . I agree with the Fourth District's decision in State v. Irizarry, 698 So. 2d 912 (Fla. 4th DCA 1997), that State v. Donaldson, 579 So. 2d 728 (Fla.1991), has been superseded by section 316.1934(5), Florida Statutes (effective July 1, 1991).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Donaldson, 579 So. 2d 728 (Fla. 1991)
- Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA 1995)
- Betancourt v. State, 650 So. 2d 1021 (Fla. 3d DCA 1995)