State v. Brigham
| Decision Date | 07 May 1997 |
| Docket Number | No. 96-01837,96-01837 |
| Citation | 694 So.2d 793 |
| Parties | 22 Fla. L. Weekly D1174 STATE of Florida, Appellant, v. Jerry BRIGHAM, Milan Krstec, John Paul Pobudinski, and Terrence Rolph, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa; and Earl Moreland, State Attorney, Twelfth Judicial Circuit, and John M. Gillies, Assistant State Attorney, Sarasota, for Appellant.
Robert N. Harrison, Venice, for Appellees Brigham and Rolph.
Kerry E. Mack, Englewood, for Appellee Krstec.
David J. Migneault of Migneault & Wolfendale, P.A., Punta Gorda, for Appellee Pobudinski.
The state appeals a nonfinal order granting a motion in limine in four consolidated county court DUI prosecutions. The order suppresses breath alcohol evidence provided by an Intoxilyzer 5000 breath test instrument and effectively requires the dismissal of all charges alleging a violation of section 316.193(1)(b), Florida Statutes (1995). The county court has certified several questions that require us to interpret the phrase, "breath alcohol level of 0.08 percent or higher" in section 316.193(1)(b). 1 We reverse the suppression orders. Although it may initially seem counter-intuitive because "percent" has a common definition for mathematical purposes, in this context it means "grams per 210 liters of breath."
In reaching our decision, we have considered not only the county court decision in this case but also several other county court decisions which the parties provided as persuasive authority. These decisions reach conflicting results. This court has been persuaded by the excellent opinion of Judge William A. Cooper, Jr., in State v. Wolfrom, No. 94-4-2808-TT (Fla. Bay County Ct.1994). A copy of the relevant portions of that opinion is attached as Appendix A.
All four cases are pending in Sarasota County Court on misdemeanor DUI charges. Mr. Jerry Brigham was arrested on Friday, July 21, 1995, at 5:45 p.m., for driving under the influence ("DUI"). His Intoxilyzer 5000 tests reported .227 and .225 grams of alcohol in 210 liters of breath. In addition to the breath test evidence, the probable cause affidavit reveals that the arresting officer observed erratic driving and other common indicators of intoxication.
Mr. Milan Krstec was arrested on Saturday, August 12, 1995, at 1 a.m. He was stopped because he was allegedly driving 76 mph in a 55 mph zone. When stopped, he admitted that he had consumed five beers. The standard sheriff's DUI report states that his breath test results were .098% and .097%. 2
Mr. John Pobudinski was arrested on Friday, July 29, 1994, at 10 p.m. He was observed driving erratically by the arresting officer and failed a field sobriety test. Mr. Pobudinski's Intoxilyzer 5000 breath test results were .238, .214, and .201.
Finally, Mr. Terrance Rolph was arrested on Thursday, October 19, 1995, at 11:30 p.m. He was stopped because he was allegedly driving 60 mph in a 35 mph zone and his car had only one operable headlight. The officer's probable cause affidavit reveals that Mr. Rolph admitted that he had been drinking beer and asked the officer to give him "a break." His three Intoxilyzer 5000 results were .143%, .168%, and .170%.
The DUI statute proscribes the operation of a vehicle by a driver under two different, but interrelated, circumstances. First, it is illegal to operate a vehicle "under the influence of alcoholic beverages ... when affected to the extent that the person's normal faculties are impaired." § 316.193(1)(a), Fla.Stat. (1995). Second, it is illegal to operate a vehicle with "a blood or breath alcohol level of 0.08 percent or higher." § 316.193(1)(b), Fla.Stat. (1995). In each defendant's case, the record includes evidence the state could present in a subsection (a) "impairment" case. The defendants attempt to exclude evidence that would support a subsection (b) "percent" case. Because no blood tests were obtained from the defendants, the state must present proof of a "breath alcohol percent" to establish a subsection (b) violation.
Prior to 1991, section 316.193(1)(b) only prohibited the operation of a vehicle by a person with "a blood alcohol level of 0.10 percent or higher." § 316.193(1)(b), Fla.Stat. (1989). In 1991, the legislature amended that statute to add the concept of a "breath alcohol level of 0.10 percent." Ch. 91-255, § 1 at 2443, Laws of Fla. This concept was not changed when the permissible level of alcohol was reduced to 0.08% in 1993. Ch. 93-124, § 1 at 640, Laws of Fla. "Percent" is not defined in the statute. It is the absence of a statutory definition that fuels the defendants' argument.
All defendants argue that an Intoxilyzer 5000 breath test instrument actually measures grams of alcohol in a volume of breath. They reason that the ordinary definition of "percent" involves a mathematical equation of parts per one hundred. Webster New World College Dictionary 1002 (3d ed.1996). Under this ordinary definition, they believe that .227 grams of alcohol in 210 liters of breath equates to a breath alcohol percent of 0.000108. The trial court held that the common and ordinary meaning of "percent" requires the grams per liter measurement to be converted to the defendants' much smaller calculation.
As explained in this opinion, the defendants' theory contains a patent error in one of its assumptions. More important, it does not take into consideration some very practical information about the Intoxilyzer 5000 and the other breath test instruments in use in 1991 and 1993 when the statute was amended.
In 1991 and 1993 when the legislature amended the DUI statute, the Intoxilyzer 5000 was an accepted breath testing machine in Florida. Fla Admin.Code R. 10D-42.024(3) (Mar.1993). This complex machine is actually a spectrophotometer that measures the absorption of infrared light by a sample of a gas. When a spectrophotometer is used as a breath test instrument, the sampled gas is human breath.
The absorption of infrared light by a sample of gas is affected by the concentration of alcohol in the gas. Once a sample's level of infrared light absorption is known, a physicist can calculate the concentration of alcohol in the sample of breath using a standard formula based on Beers Law or the Beer-Lambert Law. This standard formula determines the concentration in terms of the weight of the alcohol within the gaseous volume, i.e., grams per liter. See Paul Schop, Is DWI DOA?: Admissibility of Breath Testing Evidence in the Wake of Recent Challenges to Breath Testing Devices, 20 Sw. U.L.Rev. 247 (1991). The Intoxilyzer 5000 performs this calculation electronically and provides the results on a paper printout.
The level of alcohol in one's breath is dependent upon the level of alcohol in one's blood. Alcohol in human breath occurs due to the evaporation of alcohol in the lungs from the blood into the breath. The greater the blood alcohol concentration, the higher the breath alcohol concentration. The relationship between these two concentrations is derived by a formula that is an application of Henry's Law. Henry's Law states that, at a constant temperature, the concentration of a gas dissolved in a liquid is proportional to the concentration of that same gas in air directly above that liquid. See id. at 255-256.
When the level of alcohol in breath is compared to the level of alcohol in blood, there are differences among people. Nevertheless, by the early 1950s, the National Safety Council determined that under Henry's Law, for legal purposes, it is reasonable to assume that the weight of the alcohol present in one milliliter of any person's blood is equivalent to the weight of alcohol present in 2100 milliliters of that person's breath at 34 degrees centigrade. Peter Gerstenzang, How to Handle the DWI Case, The Breathalyzer 1993, at 69, 77 (PLI Litig. & Admin. Practice Course Handbook Series No. H 4-5182, 1993).
Despite the continuing scientific debate over the precision of the 1:2100 ratio, by 1991 it was widely accepted as an adequate equation for alcohol impairment statutes and testing machinery. Although the lawyers who defend DUI cases have long disputed the accuracy of this ratio, in 1990 a leading Florida defense treatise stated: "All breath instruments are calibrated on the assumption that the breath to blood ratio is 2100 to 1." Richard E. Jensen, Ph.D., DUI Defense: Tactics and Case Law, I-9 (Professional Education Systems 1990). An excellent law review discussion of the issue in 1991 states:
The universality of the 1:2,100 ratio is readily apparent. All breath testing devices currently on the National Highway Traffic Safety Administration's list of devices conforming to its model specification for breath testing equipment use this ratio. These model specifications are used as guidelines by states receiving federal money to purchase breath testing devices. The 1:2,100 ratio is also recognized by the Committee on Alcohol and Other Drugs of the National Safety Council as an accurate way to determine blood alcohol content.
In addition, the Uniform Vehicle Code now incorporates the 1:2,100 ratio into its per se definition of intoxication by defining alcohol concentration as either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. Fourteen states have adopted the definition of intoxication.
See Paul Schop, Is DWI DOA?: Admissibility of Breath Testing Evidence in the Wake of Recent Challenges to Breath Testing Devices, 20 Sw. U.L.Rev. 247, 256-257 (1991).
The Florida Legislature expressly adopted this assumption in the implied consent statute in 1991 in the same law that added the "breath alcohol percentage": ...
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