State v. Flood
| Decision Date | 17 March 1988 |
| Docket Number | No. 87-686,87-686 |
| Citation | 523 So.2d 1180,13 Fla. L. Weekly 701 |
| Parties | 13 Fla. L. Weekly 701 STATE of Florida, Appellant, v. Charles FLOOD, et al., Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellant.
Flem K. Whited, III, Daytona Beach, for appellee Charles Flood, Miched Rizzo and Sheryl Trottier.
Michael Lambert, Daytona Beach, for appellees Palmer Panton and Charles Pelcher.
Horace Smith, Jr., P.A., and Dwight Chamberlin of Dunn, Smith & Withers, Daytona Beach, for appellee Thomas G. Hall.
Enoch J. Whitney, General Counsel, and R.W. Evans, Asst. General Counsel, Tallahassee, for amicus curiae Dept. of Highway Safety and Motor Vehicles.
The issue in this case is whether the county court erred in determining that the results of a chemical breath test administered to several defendants were inadmissible.
After the eight consolidated defendants in this appeal were arrested, they submitted to a breath test conducted by the Volusia County Sheriff's Department, using an Intoximeter 3000 (I-3000) Breathalyzer machine. The defendants filed motions to suppress the results of the test on the grounds that the I-3000 had been substantially altered without the approval of the Department of Health & Rehabilitative Services (HRS).
At a hearing on the motions, the trial court heard expert testimony, pro and con, concerning the extent of modification of the machine subsequent to its initial certification on July 1, 1982. The court determined that there had "been enough change that this is a different machine and that consequently, the State must go through the full recertification process for this machine." The chemical breath tests of the modified machine were thus excluded, and the state appeals based on the county court's certification of the following question:
Whether modification of a component part of a previously certified breath-testing instrument requires re -certification of that instrument by the Department of Health and Rehabilitative Services before the alleged test results from said instrument may be admitted into evidence?
We answer the certified question in the affirmative.
The state raises three basic points on appeal: (1) recertification is not required by Florida statutes or HRS rules or regulations; (2) the county court went beyond its proper scope of review in determining that the I-3000 as modified must be recertified by HRS; and (3) there was a lack of substantial, competent evidence to support the county court's conclusion that the I-3000 as modified needed further testing and recertification.
The state asserts that recertification was not required by the Florida Statutes because "[t]here is no stated requirement in any Florida Statute that breath testing machines must be 'recertified,' or even, for that matter, 'certified.' " The state is technically correct in its assertion as to "certification" and the appellees agree. However, section 316.1932(1)(a), Florida Statutes (1985), provides in part:
(1)(a) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state shall, by so operating such vehicle, be deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances, if he is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances.
(Emphasis supplied.) The statute further provides:
An analysis of a person's breath, in order to be considered valid under the provisions of this section, must have been performed substantially according to methods approved by the Department of Health and Rehabilitative Services. For this purpose, the department is authorized to approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid.
§ 316.1932(1)(b)1 (emphasis supplied.) Consequently, the issue of approval of these machines is left to HRS per Florida statutory authority.
Florida Administrative Code Rule 10D-42.022 provides for HRS approval of chemical breath testing methods for determining blood alcohol content for evidentiary purposes. The I-3000 is listed as an approved chemical breath-testing instrument. See Fla.Admin.Code R. 10D-42.024(9). According to the state, there is no rule requiring a machine to be recertified each time a modification is made. Appellees counter:
The state's argument that re-certification is not required by statute or rule is a shallow argument in that it is admitted by all parties that recertification or re-approval is not mentioned. What is mentioned is approval, and that's exactly what Defendants are arguing to this Honorable Court. The Defendants have examined the machine that was used in their cases and allege that it is not the machine that is on the approved list and is, therefor [sic], not an approved machine pursuant to Section 316.1932, Florida Statutes.
The appellees, as did the trial court, rely on Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (Pa.1986). In McGinnis, the defendant was arrested for operating a motor vehicle while driving under the influence of alcohol. A Breathalyzer test was administered, and the defendant attempted to have the results of the test suppressed, arguing that the test was conducted on a machine not approved by the Department of Health. The machine had been modified prior to use. The Supreme Court of Pennsylvania...
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