State v. PotterState v. Potter
By Petition for Writ of Certiorari, the state asks this court to review the order of the Circuit Court of the Tenth Judicial Circuit affirming the county court‘s (1) grant of respondent‘s motion for suppression of evidence stemming from her arrest and (2) granting suppression of evidence of a breathalyzer test. Finding the circuit court affirmance of the first part of the county court‘s decision to involve a departure from the essential requirements of law, we partially grant the relief requested in the state‘s petition.
On July 16, 1982, Officer Steven Green of the Avon Park Police Department observed respondent operating her vehicle within the city limits with one of her two taillights apparently nonfunctional. In following and closing on her vehicle he discovered that the taillight was merely dim. However, he also observed respondent‘s vehicle “weave,” crossing the center line three times. Officer Green activated his blue-light and siren, stopping respondent approximately one-half mile beyond the city limits. After the stop, Officer Green‘s observations of respondent convinced him that respondent was intoxicated. He administered two roadside sobriety tests which re-enforced his conclusion. He, therefore, placed her under arrest for driving while intoxicated. On the same date, she submitted to a breathalyzer test, resulting in a .17 reading.
On September 17, 1982, an information was filed, charging respondent with driving under the influence of alcoholic beverages and unlawful blood alcohol, contrary to
Pursuant to
The state‘s second contention is that suppression of the breathalyzer test results was improper. We disagree.
Public concern and protection may, as here, justify the invasion or transgression of our highly regarded right of personal privacy or freedom.2 The legislature has the right to determine under what circumstances such an invasion is justified, within established constitutional limits. It should go without saying that any specific legislative restrictions or dictates accompanying such invasions must be strictly complied with and narrowly applied.
When the state presents evidence of motor vehicle driver intoxication which includes an approved alcoholic test method, the test results are admissible only upon compliance with the statutory provisions and the administrative rules enacted thereunder. State v. Gillman, 390 So.2d 62, 63 (Fla. 1980); State v. Bender, 382 So.2d 697, 699 (Fla. 1980). Chemical analysis of a person‘s blood or breath must be performed “by an individual possessing a valid permit issued by the Division of Health for this purpose.”
On July 16, 1982, Sebring Police Officer Leonard Hardy administered a breathalyzer test to respondent. At the hearing in county court, Officer Hardy produced a permit card indicating that it was valid from March 20, 1979, to March 19, 1982. He therefore did not possess a valid permit at the time of performing the analysis on July 16, 1982. The state contends this was immaterial and that while he had not been issued a new card he should be considered permitted through 1984. Officer Hardy testified that he submitted to (and presumably completed and passed) refresher courses on August 18, 1981, and September 28, 1982. The former took place before the expiration date on his permit and the latter after it had expired and after the analysis in question. In addition, a letter was introduced from S.O. Roberts, Alcohol Breath Testing Supervisor for the Department of Health and Rehabilitative Services, to petitioner‘s counsel. This letter stated that Officer Hardy was issued a permit to conduct breathalyzer tests, dated August 18, 1981, through August 17, 1984. This is totally inconsistent with the dates on the officer‘s permit. The letter also stated that Officer Hardy had “attended a refresher school on August 18, 1981, making his permit valid on July 16, 1982.” This may have entitled the officer to a permit under the department‘s rather ambiguous regulation 10D-42.26,3
Based on our review of the evidence presented at the suppression hearing and review of the administrative rule governing renewal of permits, we cannot fault the trial court‘s conclusion that the state failed to carry its burden of affirmatively showing that the operator held a valid permit on July 16, 1982. Accordingly, we find the state‘s second contention to be without merit.
That part of the circuit court‘s decision affirming the trial court‘s suppression of evidence stemming from the arrest is QUASHED. That part of the circuit court decision affirming the trial court‘s suppression of the breathalyzer results is AFFIRMED for the reasons herein expressed.
DANAHY and LEHAN, JJ., concur.
Notes
Relevant portions of section 901.25(1) and (2) provide:
(1) The term “fresh pursuit” as used in this act shall include fresh pursuit as defined by the common law... . It shall also include the pursuit of a person who has violated a city ordinance or committed a misdemeanor.
(2) Any duly authorized state, county, or municipal arresting officer is authorized to arrest a person outside his jurisdiction when in fresh pursuit.