Gallagher v. State

Sep 26, 1991
No. 77213
Versions:597 So. 2d 767
16 Fla. L. Weekly Supp. 637
1991 WL 188304
1991 Fla. LEXIS 1639
BARKETT, Justice.

We review Gallagher v. State, 570 So.2d 442 (Fla. 3d DCA 1990), in which the district court certified the following question of great public importance: *

Whether the numerical result of the blood alcohol test taken ... after the defendant’s last operation of a motor vehicle is admissible evidence where the state’s expert witness would testify that the numerical reading would not be the [blood alcohol level (BAL)] at the time the defendant was operating the vehicle, where that witness was unable to testify what the defendant’s BAL was at the time he was operating the vehicle, and where the witness testified that the BAL could have been lower than .10% at the time the defendant operated the vehicle.

State v. Miller, 555 So.2d 391, 392 (Fla. 3d DCA 1989).

The district court relied in part on Miller, which we recently approved in part and quashed in part. Miller v. State, 597 So.2d 767 (Fla.1991). Accordingly, we vacate the judgment below and remand for reconsideration in light of our opinion in Miller. We do not address the additional issues raised in the petitioner’s brief.

It is so ordered.

SHAW, C.J., and OVERTON, MCDONALD, GRIMES, KOGAN and HARDING, JJ., concur.

Notes

The district court certified "the same question of great public importance certified in [State v.] Miller [, 555 So.2d 391, 394 (Fla. 3d DCA 1989), approved in part, quashed in part, 597 So.2d 767 (Fla.1991) ].” We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.