Belvin v. State, No. 4D04-4235 (FL 6/8/2005)
| Decision Date | 08 June 2005 |
| Docket Number | No. 4D04-4235.,4D04-4235. |
| Parties | BRUCE BELVIN, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida Supreme Court |
Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A. for petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
Petitioner Bruce Belvin seeks certiorari review of a final decision of the Palm Beach Circuit Court, rendered in its appellate capacity, affirming his conviction and sentence for driving under the influence of alcohol. Because we agree with petitioner that admission of the breath test affidavit at his criminal trial violated his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), we grant the writ and remand this cause for a new trial.
Bruce Belvin was arrested for driving under the influence (DUI) and transported to a breath testing facility. There, he submitted to a breath test. His breath test results measured 0.165, 0.144, and 0.150. At Belvin's non-jury trial, the arresting officer testified that he made the traffic stop and requested the breath samples. He also signed a breath test affidavit, along with Breath Test Technician Rebecca Smith. Technician Smith administered the breath test and prepared the breath test affidavit, but she did not testify at trial. Belvin objected to introduction of the breath test affidavit, arguing that admission of the affidavit violated his constitutional right of confrontation under Crawford. The trial court overruled petitioner's objection and received the breath test affidavit into evidence. The court found Belvin guilty of DUI.
Petitioner appealed his conviction and sentence to the circuit court. The circuit court initially reversed the county court conviction, but affirmed it on rehearing, holding that breath test affidavits are not testimonial in nature, and therefore, the Confrontation Clause does not apply. The circuit court's ruling prompted this petition for writ of certiorari.
In Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995), the supreme court discussed the standard of review that applies when a district court reviews an appellate decision of a circuit court. The court explained that the proper inquiry is whether the circuit court afforded the petitioner procedural due process and applied the correct law. Failure to apply the correct law, which is synonymous with a departure from the essential requirements of the law, is something more than a simple legal error. Id. at 528. To warrant a writ of certiorari, the error must be "serious enough to constitute a departure from the essential requirements of the law." Id. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Id. (citing Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983)).
The state argues that the petitioner has not made an adequate preliminary showing that the circuit court's decision violated "a clearly established principle of law." In so arguing, the state asserts that the county court properly admitted the affidavit pursuant to sections 316.1934(5) and 90.803(8), Florida Statutes, and based on controlling precedent from our district. See Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA 1995) (); State v. Irizarry, 698 So. 2d 912 (Fla. 4th DCA 1997) ().
Section 316.1934(5), Florida Statutes, provides:
An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by § 316.1932 or 316.1933, is admissible in evidence under the exception to the hearsay rule in § 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.
Section 90.803(8) provides as an exception to hearsay:
(8) Public records and reports.—Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354 (emphasis added).
As mentioned above, the state argues that certiorari review should not be granted because the above statutes and case law demonstrate that the circuit court's decision did not violate "a clearly established principle of law." True, ample precedent existed for the court's decision to admit the breath test affidavit. But for purposes of certiorari review, "clearly established law" can derive from recent controlling constitutional law. See Allstate Insurance Company v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003) ().
In arguing that admission of the breath test affidavit constitutes a violation of clearly established law, petitioner relies on the Supreme Court's recent ruling in Crawford v. Washington. There, the Court held that an out-of-court statement that is "testimonial" in nature is inadmissible in criminal prosecutions, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statement is deemed reliable by the court.
In deciding Crawford, the Court overruled Ohio v. Roberts, 448 U.S. 56 (1980), which had dispensed with the need for face-to-face confrontation if the hearsay evidence bore "particularized guarantees of trustworthiness" or fell under a "firmly rooted hearsay exception." Crawford, 124 S.Ct. at 1369 (citing Roberts, 448 U.S. at 66). The Court determined that the test set forth in Roberts failed to satisfy the historical concerns of the Confrontation Clause, stating:
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.
Although the Crawford Court declined to provide a complete definition of "testimonial" evidence, petitioner argues that its partial definition encompasses the breath test affidavit. The Court explained that the Confrontation Clause:
[A]pplies to "witnesses" against the accused—in other words, those who "bear testimony." "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially";" extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Id. at 1364 (citations omitted) (emphasis added).
Here, it is undisputed that the sole purpose of the breath test affidavit generated by law enforcement is for use...
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