Concurrence Opinion
concurring specially.
The test results in this case had independent scientific standing to justify its admission, even if there were no operable rules then in effect adopted by HRS. I think this item of evidence was admissible quite independent of sections 316.1932(1)(f)1 or 316.1934(3), Florida Statutes (Supp.1982). See Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983).
Relying upon the principle that procedural rules may be retroactively applied, as the majority opinion appears to do, invites the dilemma of having to also hold that procedural rules governing admissibility of evidence in courts may be passed by the legislature. The contrary is well established. Procedural rules governing the operation of the courts of this state are deemed to be the special province of the Florida Supreme Court. Markert v. Johnston, 367 So.2d 1003 (Fla.1978); Benyard v. Wainwright, 322 So.2d 473 (Fla.1975); Military Park Fire Control Tax District No. 4 v. DeMarois, 407 So.2d 1020 (Fla. 4th DCA 1981).
Lead Opinion
This is an appeal from an order suppressing evidence of the results of an intoxilyzer test in a manslaughter case. An intoxilyzer is a device which measures blood/alcohol levels.
This case is like Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983) and we are in agreement with the Drury ruling.. Thus we must reverse the order of suppression. Appellee here also argues that the intoxilyzer device itself was not approved by the Department of Health and Rehabilitative Services as the statutes required. We conclude that the Department of Health and Rehabilitative Services Rule 10D-42.24(5) does approve the device which was apparently used in this case, thus find appellee’s argument without merit. We certify to the supreme court the same question posed in Drury as being of great public importance.
REVERSED and REMANDED.