Belvin v. StateBelvin v. State
EN BANC
TAYLOR, J.
On rehearing, we withdraw our prior opinion and substitute the following in its place.
Petitioner Bruce Belvin seeks certiorari review of a final decision of the Palm Beach Circuit Court, rendered in its appellate capacity, affirming his conviction and sentence for driving under the influence of alcohol. Because we agree with petitioner that admission of certain portions of the breath test affidavit at his criminal trial violated his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we grant the petition and remand this cause for a new trial.
Bruce Belvin was arrested for driving under the influence (DUI) and transported to a breath testing facility. There, he submitted to a breath test. His breath test results measured 0.165, 0.144, and 0.150. At Belvin‘s non-jury trial, the arresting officer testified that he made the traffic stop and requested the breath samples. Breath test technician Rebecca Smith administered the breath test and prepared the breath test affidavit, but she did not testify at trial. Belvin objected to introduction of the breath test affidavit without the breath test technician being present at trial and subject to cross-examination. He argued that the affidavit was hearsay and that he had a statutory right to subpoena the technician for trial, pursuant to
In Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995), the supreme court discussed the standard of review that applies when a district court reviews an appellate deсision of a circuit court. The court explained that the proper inquiry is whether the circuit court afforded the petitioner procedural due process and applied the correct law. Failure to apply the correct law, which is synonymous with departure from the essential requirements of the law, is something more than a simple legal error. Id. at 528. To warrant a writ of certiorari, the error must be serious enough to constitute a departure from the essential requirements of thе law. Id. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Id. (citing Combs v. State, 436 So.2d 93, 95-96 (Fla.1983)).
The state urges us to deny the petition, arguing that the petitioner has not made an adequate preliminary showing that the affirmance of the trial court‘s decision to admit the breath test affidavit violated “a clearly established principle of law.” The state contends that the county court properly admitted the affidavit as a public records hearsay exceрtion, pursuant to
Petitioner counters that the circuit court‘s ruling on the breath test affidavit violated a clearly established principle of law in that it conflicted with the United States Supreme Court‘s decision in Crawford v. Washington. There, the Court held that hearsay that is “testimonial” in nature is inadmissible in criminal prosecutions unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. As discussed below, the Court did not specifically define “testimonial” hearsay, but suggested some examples of evidence that would fall within that category. The issue we must decide is whether breath test affidavits, or any portion thereof, constitute “testimonial” hearsay and are thus subject to the holding in Crawford.
In a drunk driving prosecution, before introducing breath test results, the state must present evidence that the test was performed substantially in accordance with approved methods, by a person trained and qualified to conduct it, on an approved machine that has been tested and inspected. See State v. Donaldson, 579 So.2d 728 (Fla.1991). To simplify the state‘s burden in presenting this evidence, the legislature passed laws allowing the state to introduce at trial an affidavit containing the necessary evidentiary foundation for breath test results. See
An affidavit containing the results of any test of a person‘s blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for рublic records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and
(e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.
The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an аdverse witness at a civil or criminal trial or other proceeding.
(8) PUBLIC RECORDS AND REPORTS. — Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of informаtion or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.
(emphasis added).
As mentioned above, the state argues that certiorari review should not be granted because the above statutes, along with precedent in our district, demonstrate that the circuit court‘s decision does not violate “a clearly established principle of law.” But for purposes of certiorari review, “clearly established law” can derive from recent controlling constitutional law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (noting that “`clearly established law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law“).
The recent controlling constitutional law that petitioner relies on is Crawford v. Washington, wherein the Court held that hearsay of a testimonial nature is subject to cross-examination in criminal prosecutions. In deciding Crawford, the Court overturned Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which permitted the introduction of hearsay statements of unavailаble witnesses so long as the statements bore “particularized guarantees of trustworthiness” or fell under a “firmly rooted hearsay exception.” Crawford, 541 U.S. at 60, 124 S.Ct. 1354 (citing Roberts, 448 U.S. at 66, 100 S.Ct. 2531). The Court determined that the test set forth in Roberts failed to satisfy the historical concerns of the Confrontation Clause, stating:
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment‘s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause‘s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.
Although the Crawford Court declined to provide a complete definition of “testimonial” evidence, petitioner argues that its partial definition encompasses the breath test affidavit. Indeed, the Court included affidavits in its list of examples of testimonial evidence. The Court explained that the Confrontation Clause:
[A]pplies to “witnesses” against the accused — in other words, those who “bear testimony.” “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
Various formulations of this core class of “testimonial” statements exist: ”ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodiаl examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially“; “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions“; “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”
Id. at 51-52, 124 S.Ct. 1354 (citations omitted) (emphasis added).
Breath test affidavits are usually generated by law enforcement for use at a later criminal trial or driver‘s license revocation proceeding. They thus qualify as “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
The state argues that breath test affidavits are admissible under Crawford because: (1) the affidavits are not testimonial in nature, and (2) they qualify as “public records” excluded from Crawford‘s definition of testimony. Though the state acknowledges that Crawford lists affidavits among those items which could be considered testimonial in nature, it contends that breath test affidavits are different from the affidavits contemplated in Crawford, because they “simply involve a technician‘s observations regarding the administration of a breath test, not the examination of a declarant and the give-and-take of questions and answers.” In our view, this is a distinction without a difference. Breath testing operators are required to follow certain рrocedures to ensure the reliability of the test results, including maintaining a
The state also argues that the breath test affidavit is admissible without the breath test technician‘s presence at trial because the affidavit qualifies as a “public record.” According to thе state, Crawford would allow admission of business records and some other official records because they are not testimonial in nature. See Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354 (“Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records . . . .“); see also id. at 75, 124 S.Ct. 1354 (Rehnquist, C.J., noting in his concurrence that “the Court‘s analysis of `testimony’ excludes at least some hearsay exceptions, such as business records and official records“). The state maintains that, because
In Gehrmann v. State, 650 So.2d 1021 (Fla. 4th DCA 1995), we held that
The state argues on rehearing that to preclude admission of breath test affidavits without an opportunity for cross-examination, we must also recede from our holding in Irizarry, 698 So.2d at 912. We disagree. In Irizarry, we did not decide whether admission of the breath test result affidavit under
In this case, petitioner has not raised the issue of whether those portions of the breath test affidavit pertaining to the maintenance and inspection of the breath test instrument violate the Confrontation Clause under Crawford. Therefore, we do not now decide that issue. We note, however, that the First District Court of Appeal has held that Crawford precludes admitting that portion of the breath test affidavit pertaining to the breath testing machine‘s maintenance. See Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005). Shiver held that the affidavit confirming that the “statutorily required maintenance of the instrument was performed” was testimonial hearsay. Id. at 618. The trooper who made the DUI arrest and testified at trial “was simply attesting to someone else‘s assertion that the breathalyzer had been timely and properly maintained before being used on the Appellant.” Id. at 618; cf. Napier (holding, on rehearing, that the admission of documents regarding the inspection and certification of breath test instruments does not violate the Confrontation Clause under Crawford); State v. Cook, 2005 WL 736671 (Ohio App. Mar. 31, 2005) (holding that records relating to checks performed on a breath test machine and the qualifications of the officer administering the test are non-testimonial in nature and thus not subject to a Crawford challenge).2
In Lopez v. State, 888 So.2d 693, 701 (Fla. 1st DCA 2004), the first district rejected Blanton, concluding that a discovery deposition does not qualify as a prior opportunity for cross-examination. The court disagreed with Blanton for several reasons. First, the court distinguished between a discovery deposition and a deposition to perpetuate tеstimony under rule 3.190(j), explaining that the former is a discovery tool not intended for cross-examination. Second, the court explained that the defendant is not entitled to be present at a discovery deposition, as he or she would be during cross-examination of a witness at trial. The court stated:
Only in the broadest possible sense could it be said that a discovery deposition offers an “opportunity” for cross-examination. We think that it plainly does not offer the kind of opportunity the Court wаs referring to in Crawford. If we were to conclude that the taking of a discovery deposition satisfies the right of confrontation, we would also have to conclude that the right is satisfied even if the defendant neglects or declines to depose the witness. And it would be a very short step from there to extend the rule to defendants who have not even elected to participate in discovery. After all, the defendant has an opportunity to participate in discovery and an oppоrtunity to depose witnesses listed by the state. We could even say that the Florida discovery rule effectively eliminates the constitutional requirements announced in Crawford, so long as the state can show that the declarant was available for deposition at some time before the trial. As these possibilities illustrate, the taking of a discovery deposition cannot be treated as a proceeding that affords an opportunity for cross-examination.
Recently, in Contreras v. State, 910 So.2d 901 (Fla. 4th DCA 2005), we certified conflict with Blanton. There, we held that a video stаtement of the child victim in a sexual battery case failed to satisfy the requirements of Crawford and the Sixth Amendment. We disagreed with the state that the victim‘s testimony at the discovery deposition was a satisfactory
As mentioned above,
In sum, we conclude that those portions of the breath test affidavit pertaining to the breath test technician‘s procedures and observations in administering the breath test constitute testimonial evidenсe. Their admission at petitioner‘s criminal DUI trial violated his right of confrontation under Crawford. Because petitioner was prevented from confronting this critical evidence of his blood alcohol level at trial, its admission was serious enough to constitute a violation of a clearly established principle of law resulting in a miscarriage of justice.3 Accordingly, we grant the petition for writ of certiorari. However, in view of the importance of the issues involved, we certify the following question to be of great public importance:
Does admission of those portions of the breath test affidavit pertaining to the breath test operator‘s procedures and observations in administering the breath test constitute testimonial evidence and violate the Sixth Amendment‘s Confrontation Clause in light of the United States Supreme Court‘s holding in Crawford v. Washington, 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004)?
Certiorari granted, decision quashed.
STEVENSON, C.J., GUNTHER, STONE, WARNER, POLEN, FARMER, KLEIN, SHAHOOD and GROSS, JJ., concur.
HAZOURI, J., recused.
MAY, J., concurs specially with opinion.
MAY, J., concurring specially.
I concur in the result, but write to address two issues. Today, our court holds that portions of the breath test affidavit relating to “the breath test techniciаn‘s procedures and observations in administering the breath test” constitute testimonial evidence, and are inadmissible based upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). I don‘t disagree that certain aspects of the affidavit are testimonial in nature. However, the type of test administered, the time of the collection, and the status of the
In addition,