Criminal law -- Driving under influence -- Evidence -- Breath test
Criminal law -- Driving under influence -- Evidence -- Breath test
Criminal law -- Driving under influence -- Evidence -- Breath test -- Error to find as matter of law that state could not show breath test administered to defendant was reliable simply because court had previously found that rules for breath test operation provided by Florida Department of Law Enforcement via Form 14, which requires test operator to have subject blow into Intoxilyzer mouthpiece until told to stop, were not sufficient to produce reliable results in all cases -- Although prior ruling removed case from implied consent statute and accompanying presumptions, state still has opportunity to admit breath test under common law Bender test -- State did not waive opportunity to attempt to establish admissibility of test under common law predicate by failure to present evidence or make proffer at hearing on motion in limine where trial court specifically stated at that hearing that it did not want to hear any evidence
STATE OF FLORIDA, Plaintiff/Appellant, v. HAROLD JACOBSON, et al., Defendants/Appellees. Circuit Court, 14th Judicial Circuit (Appellate) in and for Bay County. Case No. 05-2772K. L.T. Case No. 03-2807CTMA et al.1 August 10, 2006. John D. O'Brien, County Court Judge. Counsel: Autumn M. Miller, Assistant State Attorney. James H. White, Jr., for Appellee.
[Editor's note: Lower court order published at 12 Fla. L. Weekly Supp. 1188a.]
(DEDEE S. COSTELLO, J.) The State appeals an order of the county court granting the Defendants'/Appellees' motions in limine, excluding their Intoxilyzer test results. Having considered the parties' briefs, the court file and records, and being otherwise fully advised, this Court finds as follows:
I. Procedural History
Defendant Jacobson was cited for driving under the influence. He filed a Motion in Limine and/or Motion to Suppress asking for the suppression of his Intoxilyzer test results. He asserted that the FDLE's Testing Program Form 14, pursuant to Chapter 11D-8, Florida Administrative Code, Pursuant to Rule 11D-8.017, (“Form 14” or “the rule”) which was used in administering his test, was inadequate to ensure the reliability of the Intoxilyzer test results. Form 14 required the breath test operator to have the subject blow into the mouthpiece until told to stop. Defendant asserted that, because the machine could register an acceptable reading in approximately six seconds, and because the longer the subject blows, the higher the reading is, test operators were able to use discretion to manipulate test results, both to achieve a higher result and to bring the two samples within the required .02 reading of each other. (See R1 at pp. 10-13).
Because similar motions were filed in multiple DUI cases, three Bay County judges, Judge O'Brien and Judges Elijah Smiley and Thomas Welch, conducted an en banc evidentiary hearing on the issue. The judges reserved the right to rule individually in their own cases. (See transcript of hearing at R1 at pp. 118-200; R2).
Judge O'Brien initially entered an order denying the Motion in Limine/Motion to Suppress. (See R1 at pp. 98-101). Judge O'Brien specifically found that, “If Form 14 had simply said have the subject blow into the machine as long as possible, there would be no ambiguity and no reason for this hearing. Of course, the present rule does not say that.” However, he found that breathalyzer operators where instructed in their training to have the subjects blow into the machine for as long as possible. Therefore, he found that the curriculum of the school supplemented the instructions in Form 14, providing an unambiguous standard of administration. (See R1 at pp. 98-100).
Upon a motion for rehearing filed by Defendant, Judge O'Brien reversed his decision. He determined that he was incorrect in finding that the operators' training could fill the void created by the lack of any standard in Form 14. Judge O'Brien found that such standards must be contained in rules supplied by the FDLE, and that breathalyzer school did not constitute a “rule.” The judge found that, without a discernable standard, Form 14 allowed a test operator, simply by varying the time the test subject blew into the machine, to get a wide variance in readings. He further found that the lack of a directive in Form 14 permitted the operator to decide who passes and who fails by manipulating the length of the blow and permitted the operator to manipulate the required .02 conformance between the two tests. He found that, although the breathalyzer school directed operators to have the subject blow into the machine for as long as possible, the FDLE did not have an oversight program in place to determine if operators were, in fact, administering the tests according to their training. He further found that the legislature and Florida Supreme Court have required the FDLE to enact “rules” which ensure scientific reliability, and that, given the lack of a standard in Form 14, it had not done so. While acknowledging that Judge Welch had denied the motion in his cases, Judge O'Brien felt that the mandate of the legislature and the Supreme Court required him to grant them motion in his cases. (See R1 at pp. 110-15). The State filed a notice of appeal from Judge O'Brien's decision. (See R1 at p. 116).
This Court found that the county court had granted the motion for rehearing without actually holding a rehearing. This Court found that the county court erred in failing to hold a new hearing before amending the order, thereby preventing both sides from having an opportunity to present further evidence or argument. Thus, the Court reversed and ordered the county court to conduct a hearing. (See R3 at p. 469).
After conducting a hearing, the county court again granted the Motion to Suppress/Motion in Limine, finding that the legislature and the Supreme Court had required the FDLE to make rules on the administration of the breathalyzer that ensure scientific reliability, and that Form 14 as it presently existed failed to do so. The court adopted and republished its prior opinion granting the motion. (See R3 at pp. 471-73). The State filed a notice of appeal of Judge O'Brien's order. However, inexplicably, and in spite of the fact that Judge Welch had come to a contrary ruling in his cases and, therefore, the county court judges were applying different standards, the State voluntarily dismissed the appeal. (See R3 at p. 480). Thus, this Court did not have an opportunity for appellate review of Judge O'Brien's order.
Defendant Jacobson's case progressed toward trial. He filed a Motion in Limine, seeking to prohibit the State from introducing the Intoxilyzer test results, based upon the prior order of the county court. Defendant argued that the State could not meet the common law test for admissibility under Robertson v. State, 604 So.2d 783 (Fla. 1992), and State v. Bender, 382 So.2d 697 (Fla. 1980), asserting that the court had previously ruled that the test was unreliable and, therefore, it was impossible for the State to meet the Bender requirements for admissibility. (See R3 at pp. 481-83).
On August 25, 2005, the county court held a hearing on the motion in limine. (See R42). The parties agreed that, based upon the court's prior order, the only way the State could introduce the Intoxilyzer test at trial was to meet the common law Robertson/Bender test for admissibility. (Id. atpp. 8-16). Defendant argued that, because one of the prongs of that test was to show that the test was reliable, the State could not meet the test as a matter of law, because Judge O'Brien had previously found that tests conducted under Form 14 were scientifically unreliable. (Id. atpp. 8-10, 12-13). The State argued that the court's prior ruling did not find that all of the breath tests were unreliable, but that the FDLE standard itself did not ensure reliability in all cases and, therefore, was not valid. The State asserted that, absent the FDLE standard, it should still have the opportunity to prove, under the common law framework, that each test in each particular case was reliable with respect to the particular defendant. (Id. at pp. 11, 13-15). The State acknowledged that it did not have witnesses present in court at that time to establish the Robertson/Bender factors, but claimed that it did not because the court had repeatedly ruled in the other DUI cases that were the subject of the prior order and appeal that it did not want to hear such evidence, and stated that it would provide the witnesses if the hearing was continued. (Id. at pp. 10-11, 13). The court stated that it did not want to hear such evidence. (Id. atp. 13). After more argument on the applicability of Robertson/Bender, the hearing concluded.
On September 16, 2005, Judge O'Brien entered an order granting the Defendant's Motion in Limine. He found that, as a matter of law, there was no way for the State to meet the first and third prongs of the Bender test, because “there is no way for an expert to know how long a subject blew into the machine, nor is there any legal standard as to how long the subject should have blown into the machine.” He found that expert testimony could not cure the absence of rules which caused him to grant the motion in limine in the first place. (See R3 at 486-87). This appeal followed. (See R3 at 488).
II. Merits of the Appeal
As set forth above, the only order on appeal is the county court's order of September 16, 2005, granting the Defendant's Motion in Limine by finding that, as a matter of law, the State could not meet the common law Robertson/Bender test for admissibility. Because the State dismissed the appeal of the initial order granting the Motion to Suppress/Motion in Limine, the county court's findings regarding the validity of Form 14 are not before this Court.
In its Initial Brief, the State argues that the county court erred in finding that, as a matter of law, the State could not establish the first and third prongs of the common law test. The State argues that, because the common law test applies regardless of whether or not the implied consent statute exists, the court should not have applied its ruling concerning Form 14, which arose from the implied consent framework, to bar the State from admitting the results under the common law framework. Further, the State argues that the county court erred in ruling that it could not establish the first and third prongs of the test without hearing any of the testimony it would have presented to establish those prongs. (See State's Initial Brief). The Defendant responds, as he did below, that the State could not meet the common law test for admissibility as a matter of law because, in light of the court's prior ruling, the State could not show that the test was reliable. (See Defendant's Responsive Brief).
The parties state that this Court should apply an abuse of discretion standard of review, claiming that such a standard applies to a trial court's ruling on the admissibility of evidence and citing Dessaure v. State, 891 So.2d 445 (Fla. 2004). However, Judge O'Brien granted the motion below based upon his legal conclusion that the State could not meet the common law test as a matter of law in light of his prior opinion. This is a question of law, and such issues are subject to de novo review by this Court. D.M.D. v. State, 798 So.2d 851, 853 (Fla. 1st DCA 2001).
The Bender case outlined the “common law” test for admissibility of DUI scientific testing that existed before the legislature enacted the implied consent laws. In Bender, the Supreme Court noted that, before the legislature enacted the implied consent laws, scientific tests of intoxication were admissible “without any statutory authority” if the following three-part predicate was established: (1) that the test was reliable, (2) that the test was performed by a qualified operator with the proper equipment, and (3) expert testimony was presented concerning the meaning of the test. Bender, 382 So.2d at 699. The implied consent laws make it easier for the State to establish these predicates, allowing a presumption that the test procedure is reliable and that the operator is qualified if test methods approved by the FDLE are followed. Id. (The FDLE is currently in the role that the DHSMV and the HRS were in in the Bender opinion). If the FDLE approved rules are not followed, none of the statutory presumptions apply. Id. at700. However, the State may still admit the scientific testing if it meets the common law requirements. This was further explained in Robertson, where the scientific testing of the defendant's blood did not meet the requirements of the implied consent statute because the test was not performed by an individual possessing a valid permit. However, the Supreme Court found that the evidence could still be admitted if the State met the Bender predicate. The State would not be entitled to the favorable presumptions of the implied consent law, however. See Robertson, 604 So.2d at 791.
In this case, the county court erred by finding as a matter of law that the State could not meet the Bender requirements. In the initial order, Judge O'Brien found that Form 14 produced unreliable test results as a general matter because the lack of a standard time for blowing meant that there could be wide results in testing and the individual operators could manipulate the results. As he stated in his initial order denying the motion, “If Form 14 had simply said have the subject blow into the machine as long as possible, there would be no ambiguity and no reason for this hearing. Of course, the present rule does not say that.” (See R1 at 98-100). Judge O'Brien went on to find in his order granting the motion that the lack of a standard provided unreliable results across the board because operators' training could not be used to supplement the rules where the legislature and the Supreme Court had required “rules.” Thus, Judge O'Brien essentially found that the rules provided by the FDLE via Form 14 were not sufficient to ensure reliability in all cases. This did not, however, constitute a finding that each individual test in each individual case was itself unreliable. The effect of Judge O'Brien's initial ruling was to remove the case from the implied consent statute and its accompanying presumptions that are beneficial to the State. The State, however, still has the opportunity to admit the scientific tests under the “common law” three-part test set forth in Bender. The county court erred in finding as a matter of law that the State could not show that the test in each individual case was reliable simply because the court had previously found that the FDLE's rules did not allow for reliable testing across the board in all cases. The Miles caseis in accord with this ruling. In Miles, the Defendant, who was charged with DUI, filed a Motion to Suppress/Motion in Limine to exclude a blood alcohol test, arguing that the FDLE rules did not adequately provide for the proper preservation of blood samples because they did not indicate that the samples should be kept refrigerated. The trial court found that, because of this deficiency in the rule, the State would not be entitled to the presumptions in the implied consent law. The DCA and the Supreme Court approved of this finding. However, the State was permitted to establish scientific reliability of the blood alcohol test by laying the three-pronged common law Bender/Robinson predicate. See State v. Miles, 775 So.2d 950 (Fla. 2000).
In light of the foregoing, the county court erred in ruling that the State could not, as a matter of law, establish the common law three-part predicate for admissibility of the test results. The court's September 16, 2005 order [12 Fla. L. Weekly Supp. 1188a] is reversed, and the case is remanded so that the State may attempt to establish the admissibility of the test under the common law predicate. The Court finds that the State did not waive its opportunity to do so by failing to present evidence or a proffer at the August 25, 2005 hearing on the motion in limine, because the judge specifically indicated that he did not want to hear any evidence. A proffer is unnecessary “where the offer would be a useless ceremony, or the evidence is rejected as a class, or where the court indicates such an offer would be unavailing. . .” O'Shea v. O'Shea, 585 So.2d 405 (Fla. 1st DCA 1991).
Accordingly, the Plaintiff/Appellant's appeal is granted, the order granting the motion in limine is reversed, and the matter is reversed and remanded to the County Court in and for Bay County for further proceedings consistent with this opinion.
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1The following county court case numbers have been consolidated for purposes of this appeal: 03002087CTMA, 04001653CTMA, 04001683CTMA, 04001689CTMA, 04001744CTMA, 04002466CTMA, 05003465CTMA, 05001758CTMA, 05002472CTMA, 05003338CTMA, 05003336CTMA, 05003506CTMA, 05003497CTMA, 05004074CTMA, 05002467CTMA, 05001180CTMA, 04005134CTMA. The Court will refer to Defendant Jacobson and will cite to the appeal record for his case.
2The “Hoover order” referred to in the transcript is Judge O'Brien's order granting the Motion to Suppress/Motion in Limine. Hoover is the last name of one of the defendants in the consolidated cases.
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12 Fla. L. Weekly Supp. 1188a
Criminal law -- Driving under influence -- Evidence -- Breath test -- Sufficiency of administrative rules -- By failing to make rule specifying duration of blow into Intoxilyzer, and allowing test operator to have subject blow into machine as long as operator in his undirected discretion wishes, Florida Department of Law Enforcement has failed to discharge duty imposed by legislature and Florida Supreme Court to make rules which insure scientific reliability in method of breath test administration -- Expert testimony cannot cure the absence of rules because there is no way for expert to know how long a subject blew into machine or any legal standard as to how long a subject should have blown into machine City.
STATE OF FLORIDA, Plaintiff, vs. HAROLD E. JACOBSON 03-2087-CTMA; DIANE S. HUNTER 04-1653-CTMA; WILLIAM NATHAN OLEK 04-1683-CTMA; WALTER EDWARD COPELAN 04-1689-CTMA; TAYLOR D. RUSSELL 04-1744-CTMA; BRANDI LYNN HICKS 04-2466-CTMA; STEVEN CHRISTIAN KEARNS 05-3465-CTMA; TOBY PATRICK POLK 05-1758-CTMA; KAREN M. DAUGHERTY 05-2472-CTMA; VIOLA JEAN KIST 05-3338-CTMA; PERRY BENJAMIN COLLINS, III 05-3336-CTMA; JUSTIN M. ESTRIGHT 05-3506-CTMA, Defendants. County Court, 14th Judicial Circuit in and for Bay County. September 15, 2005. John D. O'Brien, Judge. Counsel: Autumn Miller, Assistant State Attorney, Panama City, for Plaintiff. James H. White, Jr., and Michael Grabner, Staats, White & Associates, Panama City.
ORDER GRANTING DEFENDANTS' MOTION IN LIMINE
In April 2005, this Court entered its order in State v. Hoover, et al. (Case No. 03-1754-ctma) [12 Fla. L. Weekly Supp. 1186b] holding the breath test invalid because of the absence of rules which assure “scientific reliability” as required by legislative mandate. The basis of the holding is the simple fact that the longer a person with alcohol on his breath blows into the machine, the higher the score and there are no rules which direct the time a person should blow into the machine. Thus, the operator can effectively decide the test score.
The Defendants in these cases now assert that the State cannot overcome this ruling with testimony as contemplated by Bender1, as the State proposes to do.
In Bender, the Court noted that before the passage of Fla. Stat. 322.262 scientific tests of intoxication were admissible if a proper predicate established that: “(1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.”
In the cases before this Court, there is no way for any expert to get past thresholds one and three since there is no way for an expert to know how long a subject blew into the machine, nor is there any legal standard as to how long the subject should have blown into the machine. Thus, expert testimony cannot cure the absence of rules which caused this Court to enter the Hoover order in the first place.
NOW THEREFORE, the motions of the Defendants are hereby granted and the State shall not make mention of, refer to, or interrogate a witness concerning any intoxilyzer test or intoxilyzer test results obtained from the Defendants, nor will the state be permitted to present expert testimony concerning the reliability and meaning of the tests in these cases.
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1State v. Bender, 382 So.2d 697 (Fla. 1980).
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Criminal law -- Driving under influence -- Evidence -- Breath test
Criminal law -- Driving under influence -- Evidence -- Breath test -- Error to find as matter of law that state could not show breath test administered to defendant was reliable simply because court had previously found that rules for breath test operation provided by Florida Department of Law Enforcement via Form 14, which requires test operator to have subject blow into Intoxilyzer mouthpiece until told to stop, were not sufficient to produce reliable results in all cases -- Although prior ruling removed case from implied consent statute and accompanying presumptions, state still has opportunity to admit breath test under common law Bender test -- State did not waive opportunity to attempt to establish admissibility of test under common law predicate by failure to present evidence or make proffer at hearing on motion in limine where trial court specifically stated at that hearing that it did not want to hear any evidence
STATE OF FLORIDA, Plaintiff/Appellant, v. HAROLD JACOBSON, et al., Defendants/Appellees. Circuit Court, 14th Judicial Circuit (Appellate) in and for Bay County. Case No. 05-2772K. L.T. Case No. 03-2807CTMA et al.1 August 10, 2006. John D. O'Brien, County Court Judge. Counsel: Autumn M. Miller, Assistant State Attorney. James H. White, Jr., for Appellee.
[Editor's note: Lower court order published at 12 Fla. L. Weekly Supp. 1188a.]
(DEDEE S. COSTELLO, J.) The State appeals an order of the county court granting the Defendants'/Appellees' motions in limine, excluding their Intoxilyzer test results. Having considered the parties' briefs, the court file and records, and being otherwise fully advised, this Court finds as follows:
I. Procedural History
Defendant Jacobson was cited for driving under the influence. He filed a Motion in Limine and/or Motion to Suppress asking for the suppression of his Intoxilyzer test results. He asserted that the FDLE's Testing Program Form 14, pursuant to Chapter 11D-8, Florida Administrative Code, Pursuant to Rule 11D-8.017, (“Form 14” or “the rule”) which was used in administering his test, was inadequate to ensure the reliability of the Intoxilyzer test results. Form 14 required the breath test operator to have the subject blow into the mouthpiece until told to stop. Defendant asserted that, because the machine could register an acceptable reading in approximately six seconds, and because the longer the subject blows, the higher the reading is, test operators were able to use discretion to manipulate test results, both to achieve a higher result and to bring the two samples within the required .02 reading of each other. (See R1 at pp. 10-13).
Because similar motions were filed in multiple DUI cases, three Bay County judges, Judge O'Brien and Judges Elijah Smiley and Thomas Welch, conducted an en banc evidentiary hearing on the issue. The judges reserved the right to rule individually in their own cases. (See transcript of hearing at R1 at pp. 118-200; R2).
Judge O'Brien initially entered an order denying the Motion in Limine/Motion to Suppress. (See R1 at pp. 98-101). Judge O'Brien specifically found that, “If Form 14 had simply said have the subject blow into the machine as long as possible, there would be no ambiguity and no reason for this hearing. Of course, the present rule does not say that.” However, he found that breathalyzer operators where instructed in their training to have the subjects blow into the machine for as long as possible. Therefore, he found that the curriculum of the school supplemented the instructions in Form 14, providing an unambiguous standard of administration. (See R1 at pp. 98-100).
Upon a motion for rehearing filed by Defendant, Judge O'Brien reversed his decision. He determined that he was incorrect in finding that the operators' training could fill the void created by the lack of any standard in Form 14. Judge O'Brien found that such standards must be contained in rules supplied by the FDLE, and that breathalyzer school did not constitute a “rule.” The judge found that, without a discernable standard, Form 14 allowed a test operator, simply by varying the time the test subject blew into the machine, to get a wide variance in readings. He further found that the lack of a directive in Form 14 permitted the operator to decide who passes and who fails by manipulating the length of the blow and permitted the operator to manipulate the required .02 conformance between the two tests. He found that, although the breathalyzer school directed operators to have the subject blow into the machine for as long as possible, the FDLE did not have an oversight program in place to determine if operators were, in fact, administering the tests according to their training. He further found that the legislature and Florida Supreme Court have required the FDLE to enact “rules” which ensure scientific reliability, and that, given the lack of a standard in Form 14, it had not done so. While acknowledging that Judge Welch had denied the motion in his cases, Judge O'Brien felt that the mandate of the legislature and the Supreme Court required him to grant them motion in his cases. (See R1 at pp. 110-15). The State filed a notice of appeal from Judge O'Brien's decision. (See R1 at p. 116).
This Court found that the county court had granted the motion for rehearing without actually holding a rehearing. This Court found that the county court erred in failing to hold a new hearing before amending the order, thereby preventing both sides from having an opportunity to present further evidence or argument. Thus, the Court reversed and ordered the county court to conduct a hearing. (See R3 at p. 469).
After conducting a hearing, the county court again granted the Motion to Suppress/Motion in Limine, finding that the legislature and the Supreme Court had required the FDLE to make rules on the administration of the breathalyzer that ensure scientific reliability, and that Form 14 as it presently existed failed to do so. The court adopted and republished its prior opinion granting the motion. (See R3 at pp. 471-73). The State filed a notice of appeal of Judge O'Brien's order. However, inexplicably, and in spite of the fact that Judge Welch had come to a contrary ruling in his cases and, therefore, the county court judges were applying different standards, the State voluntarily dismissed the appeal. (See R3 at p. 480). Thus, this Court did not have an opportunity for appellate review of Judge O'Brien's order.
Defendant Jacobson's case progressed toward trial. He filed a Motion in Limine, seeking to prohibit the State from introducing the Intoxilyzer test results, based upon the prior order of the county court. Defendant argued that the State could not meet the common law test for admissibility under Robertson v. State, 604 So.2d 783 (Fla. 1992), and State v. Bender, 382 So.2d 697 (Fla. 1980), asserting that the court had previously ruled that the test was unreliable and, therefore, it was impossible for the State to meet the Bender requirements for admissibility. (See R3 at pp. 481-83).
On August 25, 2005, the county court held a hearing on the motion in limine. (See R42). The parties agreed that, based upon the court's prior order, the only way the State could introduce the Intoxilyzer test at trial was to meet the common law Robertson/Bender test for admissibility. (Id. atpp. 8-16). Defendant argued that, because one of the prongs of that test was to show that the test was reliable, the State could not meet the test as a matter of law, because Judge O'Brien had previously found that tests conducted under Form 14 were scientifically unreliable. (Id. atpp. 8-10, 12-13). The State argued that the court's prior ruling did not find that all of the breath tests were unreliable, but that the FDLE standard itself did not ensure reliability in all cases and, therefore, was not valid. The State asserted that, absent the FDLE standard, it should still have the opportunity to prove, under the common law framework, that each test in each particular case was reliable with respect to the particular defendant. (Id. at pp. 11, 13-15). The State acknowledged that it did not have witnesses present in court at that time to establish the Robertson/Bender factors, but claimed that it did not because the court had repeatedly ruled in the other DUI cases that were the subject of the prior order and appeal that it did not want to hear such evidence, and stated that it would provide the witnesses if the hearing was continued. (Id. at pp. 10-11, 13). The court stated that it did not want to hear such evidence. (Id. atp. 13). After more argument on the applicability of Robertson/Bender, the hearing concluded.
On September 16, 2005, Judge O'Brien entered an order granting the Defendant's Motion in Limine. He found that, as a matter of law, there was no way for the State to meet the first and third prongs of the Bender test, because “there is no way for an expert to know how long a subject blew into the machine, nor is there any legal standard as to how long the subject should have blown into the machine.” He found that expert testimony could not cure the absence of rules which caused him to grant the motion in limine in the first place. (See R3 at 486-87). This appeal followed. (See R3 at 488).
II. Merits of the Appeal
As set forth above, the only order on appeal is the county court's order of September 16, 2005, granting the Defendant's Motion in Limine by finding that, as a matter of law, the State could not meet the common law Robertson/Bender test for admissibility. Because the State dismissed the appeal of the initial order granting the Motion to Suppress/Motion in Limine, the county court's findings regarding the validity of Form 14 are not before this Court.
In its Initial Brief, the State argues that the county court erred in finding that, as a matter of law, the State could not establish the first and third prongs of the common law test. The State argues that, because the common law test applies regardless of whether or not the implied consent statute exists, the court should not have applied its ruling concerning Form 14, which arose from the implied consent framework, to bar the State from admitting the results under the common law framework. Further, the State argues that the county court erred in ruling that it could not establish the first and third prongs of the test without hearing any of the testimony it would have presented to establish those prongs. (See State's Initial Brief). The Defendant responds, as he did below, that the State could not meet the common law test for admissibility as a matter of law because, in light of the court's prior ruling, the State could not show that the test was reliable. (See Defendant's Responsive Brief).
The parties state that this Court should apply an abuse of discretion standard of review, claiming that such a standard applies to a trial court's ruling on the admissibility of evidence and citing Dessaure v. State, 891 So.2d 445 (Fla. 2004). However, Judge O'Brien granted the motion below based upon his legal conclusion that the State could not meet the common law test as a matter of law in light of his prior opinion. This is a question of law, and such issues are subject to de novo review by this Court. D.M.D. v. State, 798 So.2d 851, 853 (Fla. 1st DCA 2001).
The Bender case outlined the “common law” test for admissibility of DUI scientific testing that existed before the legislature enacted the implied consent laws. In Bender, the Supreme Court noted that, before the legislature enacted the implied consent laws, scientific tests of intoxication were admissible “without any statutory authority” if the following three-part predicate was established: (1) that the test was reliable, (2) that the test was performed by a qualified operator with the proper equipment, and (3) expert testimony was presented concerning the meaning of the test. Bender, 382 So.2d at 699. The implied consent laws make it easier for the State to establish these predicates, allowing a presumption that the test procedure is reliable and that the operator is qualified if test methods approved by the FDLE are followed. Id. (The FDLE is currently in the role that the DHSMV and the HRS were in in the Bender opinion). If the FDLE approved rules are not followed, none of the statutory presumptions apply. Id. at700. However, the State may still admit the scientific testing if it meets the common law requirements. This was further explained in Robertson, where the scientific testing of the defendant's blood did not meet the requirements of the implied consent statute because the test was not performed by an individual possessing a valid permit. However, the Supreme Court found that the evidence could still be admitted if the State met the Bender predicate. The State would not be entitled to the favorable presumptions of the implied consent law, however. See Robertson, 604 So.2d at 791.
In this case, the county court erred by finding as a matter of law that the State could not meet the Bender requirements. In the initial order, Judge O'Brien found that Form 14 produced unreliable test results as a general matter because the lack of a standard time for blowing meant that there could be wide results in testing and the individual operators could manipulate the results. As he stated in his initial order denying the motion, “If Form 14 had simply said have the subject blow into the machine as long as possible, there would be no ambiguity and no reason for this hearing. Of course, the present rule does not say that.” (See R1 at 98-100). Judge O'Brien went on to find in his order granting the motion that the lack of a standard provided unreliable results across the board because operators' training could not be used to supplement the rules where the legislature and the Supreme Court had required “rules.” Thus, Judge O'Brien essentially found that the rules provided by the FDLE via Form 14 were not sufficient to ensure reliability in all cases. This did not, however, constitute a finding that each individual test in each individual case was itself unreliable. The effect of Judge O'Brien's initial ruling was to remove the case from the implied consent statute and its accompanying presumptions that are beneficial to the State. The State, however, still has the opportunity to admit the scientific tests under the “common law” three-part test set forth in Bender. The county court erred in finding as a matter of law that the State could not show that the test in each individual case was reliable simply because the court had previously found that the FDLE's rules did not allow for reliable testing across the board in all cases. The Miles caseis in accord with this ruling. In Miles, the Defendant, who was charged with DUI, filed a Motion to Suppress/Motion in Limine to exclude a blood alcohol test, arguing that the FDLE rules did not adequately provide for the proper preservation of blood samples because they did not indicate that the samples should be kept refrigerated. The trial court found that, because of this deficiency in the rule, the State would not be entitled to the presumptions in the implied consent law. The DCA and the Supreme Court approved of this finding. However, the State was permitted to establish scientific reliability of the blood alcohol test by laying the three-pronged common law Bender/Robinson predicate. See State v. Miles, 775 So.2d 950 (Fla. 2000).
In light of the foregoing, the county court erred in ruling that the State could not, as a matter of law, establish the common law three-part predicate for admissibility of the test results. The court's September 16, 2005 order [12 Fla. L. Weekly Supp. 1188a] is reversed, and the case is remanded so that the State may attempt to establish the admissibility of the test under the common law predicate. The Court finds that the State did not waive its opportunity to do so by failing to present evidence or a proffer at the August 25, 2005 hearing on the motion in limine, because the judge specifically indicated that he did not want to hear any evidence. A proffer is unnecessary “where the offer would be a useless ceremony, or the evidence is rejected as a class, or where the court indicates such an offer would be unavailing. . .” O'Shea v. O'Shea, 585 So.2d 405 (Fla. 1st DCA 1991).
Accordingly, the Plaintiff/Appellant's appeal is granted, the order granting the motion in limine is reversed, and the matter is reversed and remanded to the County Court in and for Bay County for further proceedings consistent with this opinion.
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1The following county court case numbers have been consolidated for purposes of this appeal: 03002087CTMA, 04001653CTMA, 04001683CTMA, 04001689CTMA, 04001744CTMA, 04002466CTMA, 05003465CTMA, 05001758CTMA, 05002472CTMA, 05003338CTMA, 05003336CTMA, 05003506CTMA, 05003497CTMA, 05004074CTMA, 05002467CTMA, 05001180CTMA, 04005134CTMA. The Court will refer to Defendant Jacobson and will cite to the appeal record for his case.
2The “Hoover order” referred to in the transcript is Judge O'Brien's order granting the Motion to Suppress/Motion in Limine. Hoover is the last name of one of the defendants in the consolidated cases.
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12 Fla. L. Weekly Supp. 1188a
Criminal law -- Driving under influence -- Evidence -- Breath test -- Sufficiency of administrative rules -- By failing to make rule specifying duration of blow into Intoxilyzer, and allowing test operator to have subject blow into machine as long as operator in his undirected discretion wishes, Florida Department of Law Enforcement has failed to discharge duty imposed by legislature and Florida Supreme Court to make rules which insure scientific reliability in method of breath test administration -- Expert testimony cannot cure the absence of rules because there is no way for expert to know how long a subject blew into machine or any legal standard as to how long a subject should have blown into machine City.
STATE OF FLORIDA, Plaintiff, vs. HAROLD E. JACOBSON 03-2087-CTMA; DIANE S. HUNTER 04-1653-CTMA; WILLIAM NATHAN OLEK 04-1683-CTMA; WALTER EDWARD COPELAN 04-1689-CTMA; TAYLOR D. RUSSELL 04-1744-CTMA; BRANDI LYNN HICKS 04-2466-CTMA; STEVEN CHRISTIAN KEARNS 05-3465-CTMA; TOBY PATRICK POLK 05-1758-CTMA; KAREN M. DAUGHERTY 05-2472-CTMA; VIOLA JEAN KIST 05-3338-CTMA; PERRY BENJAMIN COLLINS, III 05-3336-CTMA; JUSTIN M. ESTRIGHT 05-3506-CTMA, Defendants. County Court, 14th Judicial Circuit in and for Bay County. September 15, 2005. John D. O'Brien, Judge. Counsel: Autumn Miller, Assistant State Attorney, Panama City, for Plaintiff. James H. White, Jr., and Michael Grabner, Staats, White & Associates, Panama City.
ORDER GRANTING DEFENDANTS' MOTION IN LIMINE
In April 2005, this Court entered its order in State v. Hoover, et al. (Case No. 03-1754-ctma) [12 Fla. L. Weekly Supp. 1186b] holding the breath test invalid because of the absence of rules which assure “scientific reliability” as required by legislative mandate. The basis of the holding is the simple fact that the longer a person with alcohol on his breath blows into the machine, the higher the score and there are no rules which direct the time a person should blow into the machine. Thus, the operator can effectively decide the test score.
The Defendants in these cases now assert that the State cannot overcome this ruling with testimony as contemplated by Bender1, as the State proposes to do.
In Bender, the Court noted that before the passage of Fla. Stat. 322.262 scientific tests of intoxication were admissible if a proper predicate established that: “(1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.”
In the cases before this Court, there is no way for any expert to get past thresholds one and three since there is no way for an expert to know how long a subject blew into the machine, nor is there any legal standard as to how long the subject should have blown into the machine. Thus, expert testimony cannot cure the absence of rules which caused this Court to enter the Hoover order in the first place.
NOW THEREFORE, the motions of the Defendants are hereby granted and the State shall not make mention of, refer to, or interrogate a witness concerning any intoxilyzer test or intoxilyzer test results obtained from the Defendants, nor will the state be permitted to present expert testimony concerning the reliability and meaning of the tests in these cases.
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1State v. Bender, 382 So.2d 697 (Fla. 1980).
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