Robertson v. State, 89-1766

• Decision Date: 08 November 1990
• Docket Number: No. 89-1766,89-1766
• Citation: Robertson v. State, 569 So.2d 861 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D2721 Willard Carl ROBERTSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 861

569 So.2d 861

15 Fla. L. Weekly D2721

Willard Carl ROBERTSON, Appellant, v. STATE of Florida, Appellee.

No. 89-1766.

District Court of Appeal of Florida Fifth District.

Nov. 8, 1990.

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

This is the appeal of a conviction for DUI/manslaughter and leaving the scene of an accident. Appellant has raised several issues on appeal, only one of which warrants discussion.

Shortly after the accident, blood samples were taken from appellant, and were subsequently tested, at the direction of an investigating officer, based on her belief that the driver was intoxicated. At trial, appellant objected to the admission of the results of the blood alcohol tests on the ground that the person who performed the test, Dr. Wayne Duer, was not certified by HRS as required by statute. Section 316.1933(1), Florida Statutes (1987), provides:

(1) Notwithstanding any recognized ability to refuse to submit to the tests provided in s. 316.1932 or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, such person shall submit, upon the request of a law enforcement officer, to a test of his blood for the purpose of determining the alcoholic content thereof.... (emphasis added)

Subsection (2)(b) of section 316.1933, Florida Statutes (1987) contains the restriction relied upon by appellant:

A chemical analysis of the person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approved by the Department of Health and Rehabilitative Services and by an individual possessing a valid permit issued by the department for this purpose. The Department of Health and Rehabilitative Services may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits which will be subject to termination or revocation at the discretion of the department. (emphasis added)

See also § 483.141, Fla.Stat. (1987). It is undisputed that Dr. Duer did not have the required permit. The state's position is that the requirements of the statute were satisfied because Dr. Duer's work was supervised by a licensed analyst, Dr. Lynn Bowman. ¹

Dr. Duer testified to his credentials at trial: a bachelor's degree in mathematics, a masters degree in organic chemistry and a doctorate in physical chemistry. He had formerly taught analytical chemistry at the University of Florida and had worked in racehorse blood analysis for the State Department of Business Regulation for ten years. He had been employed by the Florida Department of Law Enforcement ("FDLE") since December, 1986 and had begun analyzing substances for alcohol content in July, 1988.

Appellant's blood was received by Dr. Duer on July 6, 1988 and was tested on August 5, 1988. Dr. Bowman testified that the testing was conducted as part of Dr. Duer's training. Dr. Bowman would tell Dr. Duer what to do; Dr. Duer would obtain the results of the tests, and Dr. Bowman would review them. Dr. Bowman signed the laboratory report. While Dr. Duer was conducting the test procedures, Dr. Bowman was in the same laboratory, observing Dr. Duer and speaking with him while the test was going on, although he was not in Dr. Duer's presence at all times. The trial court found this procedure substantially complied with the statutory requirements but suggested to the state that, in the future, the FDLE should not do laboratory training on homicide cases. On this record, we agree with the trial court and adopt its recommendation. Nevertheless, we recognize that criminal statutes are to be construed in favor of accused persons and that whether the certification requirements of 316.1933 can be satisfied through supervision is a close question. Because the record suggests that what happened here was consistent with (then) prevailing FDLE procedures, we conclude this issue should be certified as a matter of great public importance to our supreme court.

There is an alternative basis for our affirmance. At least one other court has concluded that the requirements of section 316.1933, Florida Statutes, need not be met at all so long as the state has probable cause to extract and test a driver's blood. In State v. Quartararo, 522 So.2d 42 (Fla. 2d DCA), rev. denied, 531 So.2d 1354 (Fla.1988), the Second District Court of Appeal read State v. Strong, 504 So.2d 758 ...