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State v. Bodden4/15/2004
In State v. Bodden, 872 So.2d 916 (Fla. 2d DCA 2002), the Second District Court of Appeal certified the following question of great public importance:
IN ADMINISTERING FLORIDA'S IMPLIED CONSENT LAW, IS THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT REQUIRED TO ADOPT RULES IN ACCORDANCE WITH THE FLORIDA ADMINISTRATIVE PROCEDURES [SIC] ACT GOVERNING THE COLLECTION, PRESERVATION, AND ANALYSIS OF URINE SAMPLES OBTAINED BY LAW ENFORCEMENT PURSUANT TO SECTION 316.1932(1)(a), FLORIDA STATUTES. [FN1]
FN1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
Because we conclude that section 316.1932(1)(a)(1), Florida Statutes (2002), does not require that urine testing procedures be promulgated by rule in accordance with the Florida Administrative Procedure Act (APA), we answer the certified question in the negative.
FACTS AND PROCEDURAL HISTORY
This case arises out of charges that Bodden was driving under the influence in violation of section 316.193(1), Florida Statutes (2002). [FN2] During a traffic stop the police officer noticed that Bodden had red eyes and slurred speech, swayed while he stood, and smelled of alcohol. The officer read Bodden the implied consent warning, and Bodden agreed to a breath test and a urine test. The breath test results indicated that Bodden's blood-alcohol level was between .060 and .065 percent. The urine test results indicated the presence of a controlled substance.
FN2. Section 316.193(1), Florida Statutes (2002), provides in relevant part:
(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired....
Subsection (2)(a) provides the penalties which apply to a conviction under
the section. See § 316.193(2)(a).
The police also searched Bodden and found less than twenty grams of marijuana in his pocket, a marijuana pipe, and rolling papers. Consequently, he was also charged with one count of possession of cannabis in violation of section 893.13(6)(b), Florida Statutes (2002), and one count of possession of drug paraphernalia in violation of section 893.147, Florida Statutes (2002). Those charges are not at issue.
Bodden filed two motions in limine requesting that the trial court suppress any reference to his urine test results because no regulatory criteria for testing had been promulgated in accordance with chapter 120, Florida Statutes (2002) (the APA). *683 Bodden argued that section 316.1932, part of the implied consent law pertaining to the operation of motor vehicles, [FN3] requires that any scientific test conducted pursuant to the implied consent law, including a urine test, be an approved test. [FN4] At the hearing on the motion, the State provided expert testimony regarding the urine testing procedures employed by the Florida Department of Law Enforcement (FDLE) Crime Laboratory in Tallahassee and verified that although FDLE procedures were adapted from published methods, FDLE's specific procedures had not been published or promulgated in accordance with the APA.
FN3. The implied consent law pertaining to operation of motor vehicles encompasses sections 316.1932-.1934, Florida Statutes (2002). See Mehl v. State, 632 So.2d 593, 594 (Fla.1993).
FN4. At the hearing on the motion Bodden stipulated that he submitted to a urine test and the results were positive for a controlled substance.
The county court judge determined that the implied consent la
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