State v. Friedrich

• Decision Date: 12 September 1996
• Docket Number: 95-777,95-923,95-1202 and 95-1204,Nos. 95-775,95-926,s. 95-775
• Citation: 681 So.2d 1157
• Parties: 21 Fla. L. Weekly D2030 STATE of Florida, Appellant, v. Cynthia A. FRIEDRICH, et al., Appellees. Fifth District
• Court: Florida District Court of Appeals

Page 1157

681 So.2d 1157

21 Fla. L. Weekly D2030

STATE of Florida, Appellant, v. Cynthia A. FRIEDRICH, et al., Appellees.

Nos. 95-775, 95-777, 95-923, 95-926, 95-1202 and 95-1204.

District Court of Appeal of Florida,

Fifth District.

Sept. 12, 1996.

Rehearing Denied Oct. 31, 1996.

Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.

Ernest J. Mullins, Kissimmee, for Appellees.

W. SHARP, Judge.

We consolidated for purposes of appellate review ¹ six cases in which two Osceola county court judges ² granted the respective defendants' motions in limine to exclude evidence of breath test results in the defendants' prosecutions by the state for driving under the influence. ³ In all of these six cases, the trial courts relied on an identical record. It consists of testimony presented by expert witnesses and the FDLE technicians who test and maintain the Intoxilyzer machines, which produced the breath test results proffered by the state in these six cases. The trial courts also certified two questions to this court as involving matters of great public importance. The state appealed and we accepted jurisdiction. ⁴

The basis for the trial courts' rulings on the motions in limine are stated in the content of the certified questions:

A. WHETHER THE STATE OF FLORIDA SHOULD BE PROHIBITED FROM INTRODUCING BREATH TEST RESULTS IN DUI PROSECUTIONS WHERE LOCAL LAW ENFORCEMENT TESTS THEIR BREATH TESTING EQUIPMENT USING FDLE CERTIFIED STOCK SOLUTIONS WHICH HAVE NOT BEEN TESTED FOR SHELF-LIFE INTEGRITY AND WHERE THE QUANTITIES OF ALCOHOL

CONTAINED IN THE SOLUTION IS NOT NECESSARILY KNOWN?

B. WHETHER THE STATE OF FLORIDA SHOULD BE PROHIBITED FROM INTRODUCING BREATH TEST RESULTS IN DUI PROSECUTIONS WHERE THE INITIAL ALCOHOL SAMPLES FURNISHED BY FDLE WERE PREPARED WITH CONCENTRATIONS OF ALCOHOL WHICH WERE ONLY WITHIN A "RANGE" OF CONCENTRATIONS THAT MAY RESULT IN THE ACCURACY (AS OPPOSED TO PRECISION) OF THE INSTRUMENT BEING UNRELIABLE?

As limited and framed by the record in these cases, we answer both questions generally "no" and reverse. However, we recognize that the problems raised in Question B may provide a defense to a breath test placed in evidence, in a particular case, for a limited number of defendants.

The defendants in these consolidated cases sought to prevent the admission in evidence of their breath tests because they were scientifically unreliable, and because the state failed to establish compliance with the rules and regulations established by the Florida Department of Law Enforcement (FDLE) and the FLORIDA ADMINISTRATIVE CODE. RULES 11D-8.001⁵ through 8.006 govern how the breath testing machines (the Intoxilyzer 5000) must be maintained and tested for accuracy in order to make breath test results admissible in evidence in a DUI case. ⁶ Both certified questions raise potential problems with the chemical composition of the stock solutions, which are used to test the accuracy and precision of the Intoxilyzer machines, initially when they are first put into service, ⁷ and thereafter on an annual ⁸ and monthly basis. ⁹

The defendants' first ground of attack was to show that the stock solution is a volatile liquid composed of water and ethyl alcohol (ethanol). The relative composition of the solution may change over time because water and ethanol evaporate at different rates. Thus, its exact chemical composition cannot be guaranteed, unless a shelf-life time is established and unless the bottles containing the testing solution are date labeled. The defendants' second ground of attack was to show that the stock solution (which is prepared to test all the Intoxilyzer machines used in Florida, in the FDLE laboratory by the state's chemist, Thomas Wood) is sent out for use in the field, without a label showing the exact quantities of water and ethanol in each batch of stock solution. Wood testified that the ratio of ethanol to water in the batches may vary within a range of .116 to .126, although his "target" is .1215. That possible range or variation, when added to the legally permitted range of plus or minus .005 accuracy for the Intoxilyzer machines ¹⁰ can theoretically cause a machine to give a false reading outside of the acceptable range for accuracy. Both points will be discussed below.

I. Failure to Establish a Shelf-Life for the Stock Solution and Failure to Label the Test Bottles Containing Stock Solution as to Date of Preparation.

Both expert witnesses, Thomas Wood, senior chemical analyst for FDLE, who testified for the state, and Wayne Morris, a chemist employed by Morris-Kopec Forensics, Inc., who testified for the defense, described the stock solution as volatile. Since ethanol evaporates more rapidly than water, time may cause the relative composition of the solution (ratio of ethanol to water) to change. The outside time limit for the integrity of the stock solution, or its shelf life, has not been scientifically established. Wood testified he makes up a small batch of the stock solution at one time and places it in three ounce bottles. The bottles are then sealed, samples tested, and the balance of the batch is sent to the field for use.

Trained personnel in the field prepare a simulator solution from the stock solution in order to test the Intoxilyzer machines. The simulator solution is produced in the field by simply adding a certain amount of water to the stock solution, in order to mimic a human being's breath vapor at the required levels of testing--.050, .100, and .200. An Intoxilyzer machine's accuracy or precision is then determined by how close the machine gauges the expected result. Obviously the accuracy and reliability of the tests depend on the accurate chemical composition of the stock solution, from which is derived the simulator solution.

Wood testified that in the experience of FDLE and his laboratory, there is no evidence that the integrity of the chemical composition of the stock solution has failed due to the passage of time. Had there been such problems, he would have been alerted by machines all over the state testing out of the expected range. This has not happened. Further, he testified that in Florida the bottles of stock solution are normally used up in the field long before there could be shelf-life problems. He said he would comfortably place a shelf life of one year on the stock solution but he was confident it would last much longer than that. He said typically one bottle of stock solution only lasts for two inspections of a machine, and at that rate, a bottle is used up within two months.

Lieutenant Wright, who does the monthly inspections of the two Intoxilyzer machines which produced the test results in these DUI cases, testified that the records on the two machines demonstrate their accuracy. These records were placed in evidence. He pointed out that the tests on the machines, over a 40-month period, show little or no variation in results, although different bottles of stock solution were used over that period of time. He testified that these two machines have consistently tested within the tolerance levels prescribed by FDLE over the 14-month period preceding the breath tests involved in these cases.

Grady Wright, another technician who is also responsible for testing the accuracy of the two Intoxilyzer machines, testified that over a period of a year and a half, he received and used up six bottles of stock solution. He also testified that just prior to the tests involved in these cases, a FDLE inspector ran the required monthly series of tests, with one bottle of stock solution. Wright got the same results on the machine, a few days later, using a different bottle of stock solution.

Based on this testimony, we conclude that the appellees' attempt to discredit the accuracy of the Intoxilyzer machines, and the breath test results, based on stock solution's lack of shelf-life study and dating, is too theoretical and speculative. See State v. Benas, 281 N.J.Super. 251, 657 A.2d 445 (A.D.1995). Given the undisputed testimony that there is but a short time period involved during which the three-ounce bottles of stock solution are used up in the field, which is far shorter than the expert's shortest shelf-life estimate, and the established consistency in results for the machines using different bottles of the stock solution, as a practical matter, no problem with the stock solution's shelf life has yet appeared in this state's general experience. ¹¹

In this case, the testimony established the stock solution has a much longer shelf life than the time in which it is currently being used in the field, and the potential or theoretical testing problem of using aged stock solution to test the machines has not occurred in connection with these two machines, in particular, based on their maintenance and performance records. The current history of use of the stock solution to test these machines tends to establish the integrity of the machines as well as the stock solution used to test them. See Hughes v. State, 17 Ark.App. 34, 702 S.W.2d 817 (Ark.App.1986), Op. Supp., 17 Ark.App. 34, 705 S.W.2d 455 (Ark.App.1986). Further, there are currently no rules or regulations promulgated in Florida which require dating and use of bottles of stock solutions within a shelf-life time. We cannot say FDLE is remiss for not adopting rules or protocols in this regard, based on this record. See State v. Souza, 6 Haw.App. 554, 732 P.2d 253 (1987).

II. Potential Variation or Range in Alcohol Content of the Stock Solution.

As noted above, Wood prepares all of the stock solution used in this state, in his laboratory for FDLE. He testified that he makes up a batch of the solution from time to time and places it in three ounce bottles. He then tests samples of bottles from each batch with a gas chromatography machine to determine the exact amount of ethanol in the stock solution. The exact chemical...