State v. Polak

• Decision Date: 17 April 1992
• Docket Number: No. 91-2100,91-2100
• Citation: State v. Polak, 598 So.2d 150 (Fla. App. 1992)
• Parties: STATE of Florida, Appellant, v. Michael William POLAK, Gary Clinton Smith, Travis Berlin Pelt, Christopher J. Stockwell, Dawn Suzanne Williams, Michael Olson, Rodney E. Martin, Gerald Caldwell, Lonnie Beeman, Bonnie Murphy and Paul Brand, Appellees. 598 So.2d 150, 17 Fla. L. Week. D1014
• Court: Florida District Court of Appeals

Page 150

598 So.2d 150

STATE of Florida, Appellant, v.Michael William POLAK, Gary Clinton Smith, Travis Berlin Pelt, Christopher J. Stockwell, Dawn Suzanne WilliamsMichael Olson, Rodney E. Martin, Gerald Caldwell, Lonnie Beeman, Bonnie Murphy and Paul Brand, Appellees.

No. 91-2100.

598 So.2d 150, 17 Fla. L. Week. D1014

District Court of Appeal of Florida First District.

April 17, 1992.

Robert A. Butterworth, Atty. Gen., and Suzanne G. Printy, Asst. Atty. Gen., Tallahassee, for appellant.

Lee Meadows, Samuel M. Proctor, and Dean Morphonios, Tallahassee, for appellee.

ERVIN, Judge.

In this criminal appeal, the state challenges a nonfinal county court order suppressing the results of chemical breath tests administered to appellees, the defendants below.The two questions raised are whether the county court correctly determined that the Tallahassee Police Department(TPD) had substantially modified the Intoximeter 3000 Revision B-1 (I-3000 Rev. B1 or intoximeter)(an alcohol breath test device) when it bypassed its Taguchi Sensor Cell (T-cell), ¹ thereby requiring recertification or reapproval of the device, and whether the county court correctly suppressed the results of the tests administered with the I-3000 Rev. B1 on the basis of involuntary consent.We answer both questions in the affirmative and affirm.

The appellees in this case, with the exception of appelleeRodney E. Martin, were each arrested by the TPD and charged with DUI between October 26, 1990 and January 23, 1991.²Each defendant submitted to a breathalyzer test, which was performed on the I-3000 Rev. B1, SerialNo. 3707, after being informed of the implied consent warnings set out in Section 316.1932(1)(a), Florida Statutes(1989), namely, refusal to take an approved chemical test would result in suspension of the person's license and use of his or her refusal as evidence at trial.³The test results ranged from .11 to .23 percent blood alcohol content.The individual cases were consolidated below for the purpose of the motions at issue.

The defendants filed a motion in limine requesting the court to limit the state's use of the intoximeter test results, because the device had been modified in that the T-cell had been bypassed and/or overridden.The defendants contended that since the machine was modified, it was no longer an "approved" instrument; therefore, it could not be said that the defendants had consented under section 316.1932(1)(a) to an "approved" test.After considering evidence produced by both sides, the county judge ruled that the bypass of the T-cell was a substantial modification which required recertification or reapproval of the instrument.⁴The judge therefore granted the defendants' motion and ruled that the state could not rely on rules promulgated by the Department of Health and Rehabilitative Services(HRS) to supplant traditional predicates for introduction of scientific test results at trial.

The defendants next filed a motion to suppress the test results, arguing that because the modification required reapproval of the testing device, the intoximeter was no longer an "approved" testing instrument, and because they had consented under section 316.1932(1)(a) to submit only to an "approved" chemical test, it could not be said that they had voluntarily consented to submit to the unapproved test that was actually performed.Following a hearing held on this motion, the county judge entered an order suppressing the test results, ruling that the state was precluded from introducing the results even if it established the admissibility of the scientific evidence pursuant to traditional predicates.In so concluding, the county judge certified the following two questions to this court as issues of great public importance:

(a.)Is the bypass of the T[a]guchi Sensor such a modification of the breath instrument that it is no longer an "approved" instrument under Florida Statutes, Section 316.1932(1)(b) or Rules 10D-42.022, F.A.C.?

(b.)If yes, is the State precluded from otherwise establishing a scientific predicate for admission of the test results when the breath sample tested was obtained by reading the implied consent warnings which erroneously advised Defendantsthey were taking an approved test and that refusal to take it would result in license revocation and admissibility of the refusal at trial.[Footnote omitted.]

In regard to the first issue, the county court's ruling was made in response to the defendants' motion in limine.Our standard of review of a lower tribunal's ruling on a motion in limine is abuse of discretion.⁵Saavedra v. State, 576 So.2d 953, 961(Fla. 1st DCA), jurisdiction accepted, 584 So.2d 999(Fla.1991);O'Hara v. State, 554 So.2d 26, 26(Fla. 1st DCA1989).A motion in limine is one in effect suppressing evidence, State v. Palmore, 495 So.2d 1170, 1171(Fla.1986), and in matters concerning the suppression of evidence, the trial judge sits as both trier of fact and of law.The credibility of the witnesses and the weight of the evidence presented are matters within the province of the trial judge, whose determinations of factual questions must be accepted by the appellate court if the record supports that finding.Cameron v. State, 112 So.2d 864, 869(Fla. 1st DCA1959);State v. Garcia, 431 So.2d 651, 651(Fla. 3d DCA1983);State v. Battleman, 374 So.2d 636, 637(Fla. 3d DCA1979).

In the instant case, the county judge determined in ruling on the motion in limine that the bypass of the T-cell constituted a substantial modification of the device so as to require recertification or reapproval by HRS.This is a factual question that should not be disturbed on appeal, because it is based upon the trial judge's resolution of conflicting evidence and is supported by competent, substantial evidence in the record.For instance, it was undisputed that HRS had only tested the I-3000 Rev. B1 when the T-cell was activated.Although the device always had the ability to override the T-cell, Dr. Jenson, the defendants' expert in the fields of analytical chemistry, toxicology, as well as of intoximeters, testified that there had been no studies done on the effect of bypassing the T-cell, and that without the T-cell, the I- 3000 Rev. B1 was scientifically unreliable.⁶While Dr. Jenson admitted that the detection of endogenous acetone (that produced internally by humans) was not a significant factor in breathalyzer testing, he explained that little testing had been done in the area of exogenous acetone (which is absorbed from an external source, for example, through inhalation of solvents such as paint thinners), and he gave illustrations of significant discrepancies in blood alcohol content readings obtained by intoximeters with deactivated T-cells when the persons tested had no alcohol in their systems but had been exposed to exogenous acetone.

Moreover, the county judge's order in limine is supported by substantial case law.In State v. Flood, 523 So.2d 1180(Fla. 5th DCA1988), the Fifth District affirmed an order suppressing breath test results taken from an intoximeter.As in the case at bar, the police department, after experiencing numerous problems with the burning out of T-cells, had drilled a hole in the T-cell housing and inserted a valve.Although the T-cell was still operable, the defense expert testified that the instrument had been changed to such an extent that recertification was required.Based on the record before it, the Fifth District agreed that there had been so substantial a change that the modified machine required full recertification by HRS in order to be an approved machine.The court then concluded that because the breath test was not administered by an approved instrument, the test results were inadmissible and affirmed the suppression order.See alsoCommonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847(1986).CompareState v. Crea, 119 Idaho 352, 806 P.2d 445(1991);State v. Wilson, 116 Idaho 771, 780 P.2d 93(1989);Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516cert. denied, --- U.S. ----, 112 S.Ct. 86, 116 L.Ed.2d 59(1991).

Based upon the forgoing, we conclude that the trial court did not abuse its discretion by granting the motion in limine and therefore answer the first certified question in the affirmative.

Turning to the second issue, we initially agree with the state that the admissibility of blood alcohol evidence is not determined solely by reference to the implied consent statutes, and that such evidence continues to be subject to traditional rules regarding admissibility of evidence.Miller v. State, 597 So.2d 767(Fla.1991).See alsoState v. Strong, 504 So.2d 758(Fla.1987);State v. Walther, 519 So.2d 731(Fla. 1st DCA1988);State v....