Williams v. State
| Decision Date | 17 November 2021 |
| Docket Number | 2D21-59 |
| Citation | 331 So.3d 826 |
| Parties | Erica Nicole WILLIAMS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
J. Jervis Wise of Brunvand Wise, P.A., Clearwater, for Appellant.
Bruce Bartlett, State Attorney, Clearwater, and Kishantevia Carson, Assistant State Attorney, Tampa, for Appellee.
Erica Nicole Williams appeals from a judgment and sentence for driving under the influence, which was entered by the county court following a jury trial. We find error in only one of the issues Williams raises on appeal. The trial court excluded relevant evidence supportive of her defense by directing the jury to disregard testimony and argument regarding a breathalyzer reading that indicated that Williams's breath alcohol level was below the legal limit and precluding the defense from adducing additional evidence regarding the reading. The trial court accepted the State's nonmeritorious argument that evidence of breathalyzer results is only admissible if it includes two separate results based on a sufficient volume of air. Because it cannot be concluded that this error was harmless, we reverse.
Testimony supported that, after Williams was detained on suspicion of driving while intoxicated, a law enforcement officer took her to the Clearwater Police station. Another officer administered a breath alcohol test using a breathalyzer machine. Three times Williams blew into the breathalyzer machine, two of which did not result in a volume of her breath sufficient to allow the breathalyzer to produce a reading of her breath alcohol level; one of them did result in an adequate volume of breath.
During opening statements, Williams' counsel mentioned the fact that Williams was See § 316.193(1)(c), Fla. Stat. (2018) (). The State objected, arguing the "reading" could not be discussed because there were not "two valid samples" and asking that the defense be prevented from mentioning the breathalyzer result until the State could support its objection at a later time with applicable case law. The court instructed the jury "to disregard what [defense counsel] just mentioned in regards to the results of the blow," explaining to the jury that "they were not appropriate blows and it was not appropriate for him to get into that."
Later, the State's breath test operator testified that the second sample provided by Williams registered as a .04, although the first and third samples did not have the requisite volume to produce a result. During a recess, the State referred the court to Department of Highway Safety & Motor Vehicles v. Cherry , 91 So. 3d 849 (Fla. 5th DCA 2011), upon which the State relied in arguing that the defense should not be allowed to assert that the defendant had only a .04 blood alcohol level because "you need two samples, and two of the three samples is a value not met, which means she's not blowing a sufficient amount of air into the instrument," which, the State contended, meant that her breath alcohol level "could be higher, but we don't know, ... and we don't want the jury to be speculating based on the fact that she didn't blow correctly." The court refused to permit the defense to adduce additional testimony about the .04 breathalyzer result.
Later, the jurors asked the following questions:
The court responded:
I have a couple questions here where people are asking about the breath alcohol, the breath sample in this case. You need to understand, and I'm instructing you now, that there was no valid sample that was given in this case, so you are not going to consider at all a breath alcohol content in this case.
The court reiterated: "I'm advising you that there's no valid breath sample, so you all are not going to be considering any issue of breath alcohol content as it relates to this case." The jury found Williams guilty of driving under the influence. See § 316.193.
On appeal, Williams correctly contends that the trial court erred by excluding evidence of the .04 breath test result because it was admissible and exculpatory. The "[e]xclusion of exculpatory evidence violates a defendant's fundamental right under the Sixth Amendment to present a defense." Scott v. State , 17 So. 3d 766, 769 (Fla. 4th DCA 2009) (citing Wessling v. State, 877 So. 2d 877, 879 (Fla. 4th DCA 2004) ); see also Getts v. State , 313 So. 3d 964, 967 (Fla. 2d DCA 2021) . Here, the trial court prevented Williams from cross examining the breath test operator about the .04 test result. Williams was prevented from presenting her defense and adducing evidence to support it. She was prohibited from arguing based on the .04 reading that she was not driving or in actual physical control of a vehicle while impaired, and she was denied the opportunity to elicit further testimony about the .04 reading that could have shed light on its importance to her case. The evidence was relevant and therefore admissible. See § 90.402, Fla. Stat. (2019) ().
To justify its exclusion, the trial court erroneously relied on Cherry , in which the Fifth District Court of Appeal construed a provision of the Florida Administrative Code to resolve a challenge to a driver's license suspension. See Cherry , 91 So. 3d at 855–56 ; see also Dep't of Highway Safety & Motor Vehicles v. Berne , 49 So. 3d 779, 782 (Fla. 5th DCA 2010) (noting that in a formal review hearing, "to be admissible, the Department must establish that the breath test administered to determine the blood-alcohol level was performed substantially according to the pertinent statutes and the methods approved by the Florida Department of Law Enforcement (‘FDLE’), which are promulgated in the Florida Administrative Code" (citing § 316.1932(1)(b)2, Fla. Stat. (2005) ).1 The court in Cherry applied Florida Administrative Code Rule 11D–8.002(12), which sets forth the standard for administering a breath alcohol test and governs what constitutes refusal to submit to such test:
Approved Breath Alcohol Test - a minimum of two samples of breath collected within fifteen minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level, on a single Form 38 affidavit. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.
Fla. Admin. Code R. 11D-8.002(12).
A minimum of two results are required for comparison, with a third being required in the event that the difference between the first two results exceeds a specified margin. See id. However, each result can independently "be acceptable as a valid breath alcohol level" if it is "proved to be reliable." See id.
It can be inferred from the State's articulation of the purported unreliability of the .04 result that the State was arguing that an accurate test result requires a minimum of 210 liters and two of the three attempts to elicit such a volume from Williams produced less than that amount. By statute, a "breath-alcohol level must be based upon grams of alcohol per 210 liters of breath." § 316.1932. The .04 result from Williams' second sample was based on 210 liters of breath. But the State asserts that one result is not enough.
The State's argument that there must be more than one reading based on 210 liters of breath comes not from statute but rather from the Florida Administrative Code, which defines an "Approved Breath Alcohol Test" as including "a minimum of two samples of breath" registering a percentage of the grams of alcohol per 210 liters of breath. See Fla. Admin. Code R. 11D-8.002(12). Presuming for the sake of analysis that the standard set forth in the administrative rule applies in the context of the admissibility of evidence relevant to a defendant's guilt in a criminal proceeding, the rule does not support the State's argument or the trial court's conclusion. While the rule requires a minimum of two samples based on the requisite breath volume to constitute an approved breath alcohol test, it explicitly indicates that failure to meet that criteria does not necessarily render a single result invalid for the purpose of establishing an individual's breath alcohol level: "Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level." See id. And the State's own breathalyzer witness testified that the second time Williams blew into the breathalyzer machine it did produce a sample of adequate volume to elicit a grams-per-210 liter result.
In Cherry , on which the State and trial court relied, Cherry was stopped by a highway patrol trooper who suspected that she was impaired because of her erratic driving. Cherry , 91 So. 3d at 850. Cherry failed to comply with a breath tester's...
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