State v. BenderState v. Bender
These consolidated cases are before the Court upon petitions for writs of certiorari to review pretrial orders declaring unconstitutional
The contested statutory provisions direct the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services to establish and approve appropriate testing methods for determining alcoholic content in the blood. We have jurisdiction.
In the instant case, each of the respondents was issued traffic citations for driving under the influence of alcoholic beverages and for unlawful blood alcohol in violation of
Upon motions of the respondents, the trial court held the requirements in
Further, although the trial court declared moot respondents’ motions to suppress breathalyzer for failure to properly incorporate manufacturers’ operating manuals by reference in the rules, it still proceeded to note “that the defendants’ constitutional rights of due process and equal protection were violated by the failure of HRS and DHSMV to properly incorporate the procedures and methods of the manufacturers for the maintenance and operation of the breathalyzers.”
We find each of these holdings by the trial court to be erroneous. We further find
There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). Further, there is a compelling state interest in highway safety that justifies the state legislature to allow suspension of a driver‘s license for failure to take a breathalyzer or blood alcohol test. See Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979).
Prior to the adoption of
Chapter 322, Florida Statutes (1977), contains the statutory implied consent of every motor vehicle driver to take an approved chemical test to determine alcoholic content in the blood, with refusal resulting in license suspension. This chapter generally concerns the licensing of persons who drive on the public highways and the suspension of this license privilege for those who demonstrate their disregard for the safety of others. The overall purpose of this chapter is to address the problem of drunk drivers on our public roadways and to assist in implementing
The purpose of those portions of
In recognition of the multiple types of testing equipment and procedures now available for these purposes, the legislature, by these sections, directed the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services to approve the specific techniques and methods which law enforcement may use in conducting a chemical analysis of a person‘s breath or blood. Numerous state jurisdictions have enacted similar statutes mandating the use of certain approved tests. See, e.g.,
Other jurisdictions which have enacted similar statutory provisions for approved testing methods have held that noncompliance makes any test result inadmissible. See Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala. Civ. App. 1977); State v. Bruins, 315 So.2d 293 (La. 1975); State v. Miracle, 33 Ohio App.2d 289, 294 N.E.2d 903 (1973); State v. Wallin, 195 N.W.2d 95 (Iowa 1972); State v. Sinclair, 474 S.W.2d 865 (Mo. App. 1971); State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967).
It must be recognized that the implied consent provision of chapter 322 and the approved testing methods and presumptions contained therein are all interrelated.
When the prosecution presents testimony in evidence concerning motor vehicle driver intoxication which includes an approved alcohol test method by a properly licensed operator, the fact finder may presume that the test procedure is reliable, the operator is qualified, and the presumptive meaning of the test as set forth in
We expressly reject the holding of the trial court that these statutory sections constitute an unlawful delegation of legislative power to the named executive agencies. Although any delegation of legislative authority is open to judicial review, the practicalities of the subject matter sought to be controlled must be considered. There are numerous scientific tests for determining alcoholic intoxication. Blood alcohol analysis has multiple methods that fall within three basic categories: (1) diffusion, (2) aeration, and (3) distillation. Under the category of distillation alone, there are multiple methods, including: (a) Kozelka and Hine method; (b) LaMotte-Heise method; (c) Dubowski method; (d) Harger method; and (e) Friedeman and Brook method. An enzymatic procedure has been developed which eliminates the need for distillation, and there is also a gas liquid chromatography analysis for blood. In addition, tests for blood alcohol can be made from urine and saliva chemical analysis. For breath analysis, multiple means are available including the original intoximeter, the drunkometer, the alcometer, the breathalyzer, the mobat sober meter, the gas chromatography breath-testing equipment, and the intoxilyzer.
We believe the statutory authority empowering these agencies to approve testing methods for the implementation of breath-and blood-testing apparatus is proper and allowable. The legislature did not delegate to an executive agency a “law-making power,” which we found improper in Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1978). The authority to test for blood alcohol existed without this statute. The legislature merely assigned to the agencies the responsibility to establish proper uniform testing procedures for the protection of the public who must submit to the test or lose their driving privilege. There is a clear distinction between delegating to an executive agency law-making functions and assigning an executive agency supervisory responsibility over a police power function that already exists. To require legislative supervision of the administration of these scientific testing methods would require constant legislative hearings to develop the necessary expertise, which is neither practically possible nor required by our constitution. See State, Department of Citrus v. Griffin, 239 So.2d 577 (Fla. 1970). We find the legislature properly exercised its authority in assigning to these agencies the responsibility of establishing uniform and reliable testing methods in this scientific area, particularly under the circumstances where the tests are part of a statutory scheme which prescribes the implied consent of all drivers to take these tests and where the tests and procedures are always subject to judicial scrutiny.
We further reject the trial court‘s holding that the respondents’ constitutional rights of due process and equal protection were violated by the failure of the Department of Health and Rehabilitative Services and the Department of Highway Safety and Motor Vehicles to incorporate the manufacturers’ procedures for maintenance and operation as part of the promulgated rules. We note that the rules under attack require the preventive maintenance operation and preventive maintenance check to be in accordance with the procedures set forth by the manufacturer. What is attacked is the failure to attach and file those procedures with the Secretary of State. This does not constitute a due process or equal protection violation. There is no showing that these manufacturers’ operating manuals are unavailable, and the respondents clearly have the right in their individual proceedings to attack the reliability of the testing procedures or the operator‘s qualifications.
It is so ordered.
ENGLAND, C.J., and ADKINS, BOYD, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.