Haas v. State

• Decision Date: 27 September 1990
• Docket Number: No. 89-1289,89-1289
• Citation: 567 So.2d 966
• Parties: 15 Fla. L. Weekly D2418 Carl Andrew HAAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 966

567 So.2d 966

15 Fla. L. Weekly D2418

Carl Andrew HAAS, Appellant, v. STATE of Florida, Appellee.

No. 89-1289.

District Court of Appeal of Florida,

Fifth District.

Sept. 27, 1990.

James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca R. Wall, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING EN BANC

HARRIS, Judge.

In response to Appellant's motion for rehearing en banc, we have elected to consider this case en banc. Accordingly, we withdraw our prior affirmance without opinion and substitute therefore the following opinion. Carl Haas appeals his conviction and sentence for DUI manslaughter and driving under the influence causing serious bodily injury, both based on a jury finding that his blood alcohol level was at least 0.1 at the time of the accident. He contends that the trial judge erred in not granting his motion for judgment of acquittal because there was no direct evidence to establish his blood alcohol level at the time of the accident. Because we think no such evidence is required, we affirm.

At about 10:00 o'clock on the evening of March 12, 1988, Haas was driving a pick-up truck on Highway 50 in Orange County, Florida. Although the highway at that point was a divided, four lane highway, Haas was driving west in the left, east bound lane. He was familiar with the area. He drove on the wrong side of the divided highway for approximately two miles, passing six median crossovers. At least one car approaching him swerved to get out of his way. Another driver blew his horn to get Haas' attention. Without any effort to avoid the impending collision, Haas ran head-on into a vehicle driven by Jennifer Trotter, killing her and injuring her four year old son, Kevin. At the scene of the accident, Haas smelled of alcohol and three cans of cold beer with one can open were found in a six pack inside the truck; two empty cans were found outside the truck. He was combative at the scene. His blood alcohol level measured 0.11 percent when his blood test was administered an hour and 20 minutes after the accident.

Haas contends that the State, by failing to do a retrograde extrapolation of the blood alcohol test result back to the time of the accident, failed to negate his "reasonable hypotheses of innocence." But that is not the State's burden. In a circumstantial evidence case, as this is, the State is not required to rebut conclusively every possible version of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. State v. Law, 559 So.2d 187 (Fla.1989); Naumowicz v. State, 562 So.2d 710 (Fla. 1st DCA 1990). Thus the question before us is whether the evidence of a blood alcohol level of 0.11 percent an hour and 20 minutes after the accident--either alone or in conjunction with other evidence of impairment--is sufficient to uphold the jury verdict that Haas' blood alcohol level was at least 0.10 at the time of the accident.

In State v. Miller, 555 So.2d 391 (Fla. 3d DCA 1989), the Third District held that the results of a blood alcohol test taken 1 and 1/2 hours after the defendant's last operation of a vehicle was admissible without retrograde extrapolation. This is because the clear and unambiguous terms of Section 316.1934(2), Florida Statutes (1987) makes the test admissible subject only to exceptions not relevant here. Miller held that although the timing of the blood alcohol level test may affect its accuracy, the question of timeliness is to be left to the trier of fact in each case. Once the test result is placed in evidence, a defendant may generally attack the accuracy of the test on any relevant ground.

In Naumowicz v. State, supra, the court permitted the admission of a BAL test result taken 1 and 1/2 hours after the accident even though a retrograde analysis showed that defendant's blood alcohol level might have been as low as 0.08 at the time of the accident. The evidence in that case was that the defendant had been drinking over a 5 hour period on a virtually empty stomach. She had participated in a game in which guzzling beer was required. She had a beer with her at the time of the accident and ran a stop sign at an intersection with which she was familiar. The Court held:

While retrograde analysis could place her blood alcohol level only within a 0.08 to 0.17 percent range at the time of the accident, the jury could reasonably infer from the totality of the evidence as outlined above, that Naumowicz's faculties were impaired because of the alcohol consumption at the time of the accident.

Although Naumowicz was tried on joint theories of impairment and unlawful blood alcohol level, the court upheld the test result on the basis of impairment without discussing the per se unlawful blood alcohol level theory.

Haas properly points out that Miller involves a charge of impairment--not unlawful blood alcohol level as this case does. And, as just indicated, Naumowicz only discusses the impairment issue. But does that really make a difference? Since the statute makes the BAL test result admissable in either case, is it not a question for the jury in either event?

While this is a case of first impression in Florida, it is certainly not a novel case in American jurisprudence.

In State v. Taylor, 132 N.H. 314, 566 A.2d 172 (1989), the New Hampshire Supreme Court reviewed a conviction for driving under the influence based on a blood alcohol level test result taken an hour and 15 minutes after operation of the motor vehicle without retrograde extrapolation.

In reviewing its statutory scheme (which is very similar to Florida's) the Taylor court determined that the State was not required to demonstrate a conclusive nexus between the test result and the defendant's blood alcohol content at the precise time he was driving in order for the test result to be admissible as prima facie evidence that the defendant was intoxicated while driving. The fact of the blood alcohol curve only goes to the weight of the evidence. The court held that to require retrograde extrapolation would place an impossible burden on the State in that (1) the defendant would not be required to give the very information necessary to make the analysis, and (2) even if the information were available, individual characteristics would make a general rule unreliable. The legislature could not have intended such a result. Most notably, the Taylor court held that the result would be the same in an impairment case or in an unlawful blood alcohol level case.

A case remarkably similar to ours is People v. Kappas, 120 Ill.App.3d 123, 76 Ill.Dec. 1, 458 N.E.2d 140 (1983). In Kappas, the defendant was stopped after police observed his car weaving out of his traffic lane. After stopping the defendant, the officers detected the odor of alcohol and found open containers of alcohol in the defendant's car. The defendant failed field sobriety tests, was arrested, and was taken to the police station for a breathalyzer test. This test, taken 38 minutes after defendant's traffic stop, measured 0.11 percent.

On appeal defendant argued that there was no evidence that his blood level while he was driving was the same as when the test was administered. The court observed that the individual who had administered the test testified that he could not say that the defendant had a blood alcohol level of at least 0.1 at the time he was operating the vehicle. The court considered the effect of the blood alcohol absorption curve. This curve is derived by plotting the amount of alcohol which the body absorbs against the time it takes to do so. Until absorption is complete, the blood alcohol indicator rises continually. Therefore, a breathalyzer test administered immediately after ingestion of alcohol will show a lower blood alcohol level than the same test taken somewhat later even though the amount of alcohol consumed is exactly the same. The issue, then, is to what degree the delay in giving the test should affect the inference which a jury may draw from the test and all other evidence in the case.

Kappas adopted the view that the matter of delay between driving and testing are properly viewed as going to the weight of the test results and, as...