855 So.2d 1219 (Fla.App. 1 Dist. 2003), 1D01-4258, Jenkins v. State

Docket Nº:1D01-4258, 1D02-0363.
Citation:855 So.2d 1219, 28 Fla. L. Weekly D 2348
Opinion Judge:The opinion of the court was delivered by: Wolf, C.J.
Party Name:SCOTT LAMAR JENKINS, Petitioner, v. STATE OF FLORIDA, Respondent. JAMES EARL HOWARD Appellant, v. STATE OF FLORIDA Appellee.
Attorney:Jack Behr, Public Defender; Jeffrey E. Lewis, Assistant Public Defender,
Case Date:October 13, 2003
Court:Florida Court of Appeals, First District

Page 1219

855 So.2d 1219 (Fla.App. 1 Dist. 2003)

28 Fla. L. Weekly D 2348

SCOTT LAMAR JENKINS, Petitioner,

v.

STATE OF FLORIDA, Respondent.

JAMES EARL HOWARD Appellant,

v.

STATE OF FLORIDA Appellee.

Nos. 1D01-4258, 1D02-0363.

Florida Court of Appeal, First District.

October 13, 2003.

An appeal from the Circuit Court for Santa Rosa County (Case No. 02-0363). R.V. Swanson, Judge. Petition for writ of certiorari ― original jurisdiction (Case No. 01-4258).

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Jack Behr, Public Defender; Jeffrey E. Lewis, Assistant Public Defender, Milton, for petitioner/appellant.

James T. Miller, Jacksonville, for Amicus Curiae Florida Association of Criminal Defense Lawyers, on behalf of appellant.

Charlie Crist, Attorney General; Douglas T. Squire, Assistant Attorney General, Tallahassee, for respondent; and Edward C. Hill, Jr., Assistant Attorney General, for appellee.

WOLF, C.J.

We have before us two consolidated cases involving the admissibility of breath test results in "Driving While Intoxicated" cases. The trial court heard a consolidated motion to suppress the breath test results for a number of similarly situated defendants including Scott Jenkins (petitioner) and James Howard (appellant). 1 The crux of the motion to suppress involved the validity of the source of an alcohol testing solution used by the Florida Department of Law Enforcement (FDLE) to test the accuracy of breath testing machines (commonly referred to as "breathalyzers"), and the FDLE's creation and use of a form, the Certificate of Accuracy (COA), which contained standards for the proper concentrations of these alcohol testing solutions. There are two issues we must address: (I) Whether FDLE was required to engage in the rule-making process pursuant to chapter 120, Florida Statutes, the Administrative Procedures Act (APA), when it designated a sole source for the alcohol solution and created and used the COA form, and (II) if FDLE was required to promulgate a rule, what is the proper remedy when FDLE promulgated the COA form as a rule through the procedures delineated in chapter 120, Florida Statutes, after the administration of the breathalyzer tests in these cases, but prior to the challenges in the instant cases being heard.

We determine that the designation of a sole source supplier for the alcohol testing

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solution did not constitute an unpromulgated rule, but the creation and use of the COA form did constitute an unadopted rule as defined in the APA. We also determine that under the circumstances of these cases and the fact the COA form was properly adopted prior to the convictions of Jenkins or Howard, there is no valid reason to deny the State the ability to utilize the test results and the statutory presumption of intoxication related to the results of the breath tests in these cases.

JENKINS' CASE

On December 3, 1998, Scott Jenkins was arrested for driving under the influence (DUI), driving in violation of license restrictions (which limited his driving to business purposes only), and leaving the scene of an accident with property damage (after he collided with a yield sign). Ultimately, Jenkins entered a plea of no contest to driving in violation of license restrictions and leaving the scene of an accident. The matter proceeded to a trial in county court on the charge of DUI. Part of the evidence against Jenkins was a breath test result from an Intoxilyzer 5000, a breath analysis machine, which tested Jenkins at .180 and .179 grams per 210 liters of breath, which is well over the .08 limit. 2

A consolidated hearing was held on a motion to suppress the breath test results of Jenkins and other DUI defendants based on FDLE's failure to properly legitimize the use of the COA form through chapter 120 rule-making procedures. The trial court denied the motion, finding that FDLE's actions in creating parameters for the alcohol reference solution (ARS) used in inspecting the breath testing instruments and selecting an outside laboratory to provide the testing solution were not "rules" requiring chapter 120 rule-making procedures.

After a bench trial, Jenkins was found guilty of DUI. Specifically, the court found that Jenkins was driving with a breath alcohol level of more that .08 and that beyond a reasonable doubt Jenkins' normal faculties were impaired. The court emphasized, however, that the presumption of impairment based on the breath test was a factor in its determination that Jenkins was guilty.

Jenkins timely appealed his conviction to the circuit court. On August 30, 2001, the circuit court entered a written order upholding the ruling of the trial court as to Jenkins' appeal. The issues addressed by the circuit court were

(1) Whether creation and use of the COA form by FDLE between January 1, 1997, and July 6, 1999, constituted a rule and an invalid exercise of rule making;

(2)Whether the trial (county) court erred in admitting the results of the breath test based upon purported violations of the APA; and

(3) Whether defendant is entitled to a new trial.

The circuit court answered all of these questions in the negative. In finding that the selection of an outside provider and the use of the COA form were not actions taken pursuant to unpromulgated rules, the circuit court relied on the case of

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Lanoue v. Department of Law Enforcement, 751 So.2d 94 (Fla. 1st DCA 1999), and concluded,

In that the actions of [FDLE] did not rise to the level of being classified as being an unpromulgated rule, the trial court properly found that there was not an illegal exercise of delegated legislative authority and the Motion to Suppress was properly denied. The results of the breath tests were therefore legally admitted into evidence. Having reached that opinion, there is competent substantial evidence to support the finding of the trial court that the State proved beyond and to the exclusion of all reasonable doubt that the Defendant [Jenkins] was guilty of DUI.

Jenkins filed a petition for writ of certiorari in this court seeking review of the circuit court's appellate opinion.

HOWARD'S CASE

On June 26, 1999, while parked at a hotel, Howard was arrested and charged with DUI and driving with a suspended or revoked license. There were no field exercises performed, but Howard's breath test at the Santa Rosa County jail registered as 0.158 and 0.160 on the Intoxilyzer 5000 machine. Howard entered a plea of no contest to the charges and the State stipulated that the ruling on the motion to suppress was dispositive in his case of whether he was driving while under the influence of alcohol. The trial court sentenced Howard and entered an order certifying two questions to this court as being of great public importance:

Question I:

DID THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT (FDLE) VIOLATE CHAPTER 120 F.S. BY FAILING TO ENGAGE IN PROPER RULE MAKING PROCEDURES BY USING AN INTERNAL CERTIFICATE OF ASSURANCE BETWEEN JANUARY 1, 1997 AND JULY 6, 1999 AND PRIOR TO ADOPTING THE CERTIFICATE OF ASSURANCE (COA) FOR ALCOHOL [REFERENCE] SOLUTIONS?

Question II:

DOES THE FAILURE OF FDLE TO PROPERLY ADOPT RULES REGULATING ALCOHOL REFERENCE SOLUTIONS [ARS] AS RELATED TO THE MONTHLY TESTING OF BREATH TESTING DEVICES AND THE ANNUAL DEPARTMENT INSPECTIONS OF SUCH MACHINES RENDER THE BREATH TESTS OBTAINED BETWEEN JANUARY 1, 1997 AND JULY 6, 1999, INADMISSIBLE AS BEING BASED UPON IMPROPER EXERCISE OF AUTHORITY DELEGATED BY THE LEGISLATURE TO REGULATE THE ALCOHOL BREATH TESTING PROGRAM AS RELATES TO EVIDENTIARY BREATH TEST RESULTS BEING USED IN FLORIDA IN LIGHT OF STATE V. MILES ?

We restate the certified questions as set forth in the first paragraph of this opinion, identified as Issues I and II.

TESTING OF BREATHALYZER MACHINE

Before analyzing the issues before us we need to understand how FDLE tested the accuracy of the breathalyzer machines during the period in question. In order for a defendant's breath test results to be admissible as evidence in a DUI prosecution, the tests must be performed

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in compliance with the statutes and administrative rules. See State v. Friedrich, 681 So.2d 1157, 1163 (Fla. 5th DCA 1996). In order to qualify for the statutory presumption of impairment based on a breathalyser result, FDLE is required to inspect and maintain each breath testing machine to ensure its accuracy. See § 316.1932(1)(f)1., Florida Statutes (1999) (requiring FDLE to establish rules for the "reliability of result and ease of administration"). These inspections are done either by FDLE or local law enforcement departments. Currently, each breath testing machine is checked using "alcohol reference solutions" (ARS) produced in different levels of alcohol concentration such as .05, .08, or .20 to mimic acceptable or unacceptable levels of alcohol as set forth in sections 316.193 through 316.1934, Florida Statutes (1999). These solutions are used to assure that each breath machine accurately detects the level of alcohol present in a breath sample from a motorist accused of DUI. If the machine reads greater than ± .005 at the .08 and .05 levels, or greater than ± .010 at the .20 level, the machine is not "in compliance" and the results of breath tests from that machine cannot be offered as evidence in criminal trials. Fla. Admin. Code R. 11D-8.002(1) and 11D-8.006 (1999).

Prior to January 1, 1997, each local law enforcement department was required to make its own ARS using alcohol stock solution prepared by FDLE or to use a solution from a source approved by FDLE. Fla. Admin. Code R. 11D-8.006(2) (1997). During this time, the stock solution used for creating the ARS was produced by FDLE pursuant to the directives of Tom Wood, Senior Crime Laboratory Analyst with FDLE's Alcohol Testing Program. Tom Wood set the allowable parameters of the...

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