Belvin v. State

Decision Date08 March 2006
Docket NumberNo. 4D04-4235.,4D04-4235.
PartiesBruce BELVIN, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida District Court of Appeals

Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A. West Palm Beach, for petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.

ON MOTION FOR REHEARING

EN BANC

TAYLOR, J.

On rehearing, we withdraw our prior opinion and substitute the following in its place.

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 certain portions of the breath test affidavit at his criminal trial violated his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we grant the petition 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. Breath test technician Rebecca 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 without the breath test technician being present at trial and subject to cross-examination. He argued that the affidavit was hearsay and that he had a statutory right to subpoena the technician for trial, pursuant to section 316.1934(5), Florida Statutes. After concluding that the breath test affidavit was trustworthy, the trial court overruled petitioner's objection and admitted it into evidence. The court found Belvin guilty of DUI.

Petitioner appealed his conviction and sentence to the circuit court. On appeal petitioner argued that the unavailability of the breath technician at trial violated his constitutional right to confrontation, contrary to Crawford. Agreeing with petitioner, the circuit court reversed the DUI conviction. The court ruled that the breath test affidavit is testimonial hearsay and, therefore, inadmissible because petitioner did not have an opportunity to cross-examine the breath test technician. Belvin v. State, 11 Fla. L. Weekly Supp. 792 (Fla. 15th Cir.Ct. July 2004). On rehearing, however, the circuit court decided that the affidavit is not testimonial in nature and that Crawford does not preclude its admission. The court affirmed petitioner's DUI conviction. Petitioner then sought certiorari review of the circuit court's decision.

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 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 urges us to deny the petition, arguing that the petitioner has not made an adequate preliminary showing that the affirmance of the trial court's decision to admit the breath test affidavit violated "a clearly established principle of law." The state contends that the county court 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. There, the Court held that hearsay that is "testimonial" in nature is inadmissible in criminal prosecutions unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. As discussed below, the Court did not specifically define "testimonial" hearsay, but suggested some examples of evidence that would fall within that category. The issue we must decide is whether breath test affidavits, or any portion thereof, constitute "testimonial" hearsay and are thus subject to the holding in Crawford.

In a drunk driving prosecution, before introducing breath test results, the state must present evidence that the test was performed substantially in accordance with approved methods, by a person trained and qualified to conduct it, on an approved machine that has been tested and inspected. See State v. Donaldson, 579 So.2d 728 (Fla.1991). To simplify the state's burden in presenting this evidence, the legislature passed laws allowing the state to introduce at trial an affidavit containing the necessary evidentiary foundation for breath test results. See §§ 316.1934(5); 90.803(8), Fla. Stat. These statutory provisions permit breath test affidavits to be admitted as a public records exception to the hearsay rule. Section 316.1934(5) 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 which 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, along with precedent in our district, demonstrate that the circuit court's decision does not violate "a clearly established principle of law." But for purposes of certiorari review, "clearly established law" can derive from recent controlling constitutional law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (noting that "`clearly established law' can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law").

The recent controlling constitutional law that petitioner relies on is Crawford v. Washington, wherein the Court held that hearsay of a testimonial nature is subject to cross-examination in criminal prosecutions. In deciding Crawford, the Court overturned Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which permitted the introduction of hearsay statements of unavailable witnesses so long as the statements bore "particularized guarantees of trustworthiness" or fell under a "firmly rooted hearsay exception." Crawford, 541 U.S. at 60, 124 S.Ct. 1354 (citing Roberts, 448 U.S. at 66, 100 S.Ct. 2531). 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.

Id. at 61, 100 S.Ct. 2531.

Although the Crawford Court declined to provide a complete...

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