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Schofield v. State2/4/2004
Nancy Schofield petitions this court for a writ of certiorari to review a circuit court order finding that Schofield's breathalyzer test results were admissible at trial. We deny the petition because the circuit court did not depart from the essential requirements of law.
Appellee State of Florida charged Schofield with driving under the influence of alcoholic beverages, in violation of section 316.193, Florida Statutes (2000). She later contested the reliability of the breath test results obtained during her arrest and moved to strike the breath test result affidavit. *447 She argued that the breath tests did not comply with the applicable administrative rules because the arresting officer failed to ask her whether she had a dental plate and to request that she remove any such device. The county court suppressed the breath test results and found that the results did not have sufficient reliability to be accepted as evidence at trial. The circuit court, sitting in its appellate capacity, reversed the county court order.
Because Schofield does not allege any procedural due process rights violation, we limit our review to whether the circuit court departed from the essential requirements of law when it reversed the county court's order that suppressed Schofield's breathalyzer test results and conclude that the circuit court did not depart from the essential requirements of the law. See Haines City Community Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)(standard of review is whether the court afforded procedural due process and whether the circuit court applied the correct law, which is synonymous with observing the essential requirements of the law).
Two lay witnesses and three expert witnesses testified before the county court. Deputy Donald R. McAllaster of the Monroe County Sheriff's Department, the arresting officer, testified that he first obtained a breath sample from Schofield after the expiration of the twenty minutes observation period that Florida Administrative Code Rule 11D-8.007(3) requires, and the sample produced a breath test card that stated "Invalid Sample--Mouth Alcohol." He then asked Schofield to rinse her mouth with water and conducted two additional breath tests which resulted .114 and .111, respectively.
Florida Department of Law Enforcement Inspector Officer Lawrence Sanger and chemist Laura Barfield testified. Sanger testified that alcohol can be trapped in dentures and false teeth, but he did not know how the invalid reading resulted in this case and what effect water in the mouth would have on the result. He believed the mouth alcohol reading was unreliable, but that the breath tests were reliable. Barfield testified that the tests performed were valid because there were two samples taken within fifteen minutes of each other and produced readings within .02 of each other.
Rick Swope, Schofield's expert and a police officer with the Broward County Sheriff's Office, testified that the invalid mouth alcohol reading was due to the presence of alcohol in the mouth and that the dentures probably caused the alcohol presence. He stated that the studies he read and personally conducted indicated that alcohol can remain in the mouth in excess of the twenty minutes observation period that Florida regulations require. He opined that the failure to remove the dental appliances and then rinse the mouth with water rendered the subsequent test results unreliable.
We cannot agree with Schofield that the circuit court departed from the essential requirements of law in this case and that this results in a miscarriage of justice. We first turn to the affidavit received into evidence. [FN1] *448 Section 316.1934(5), Florida Statutes (2000), provides that an affidavit is "admissible without further authentication."
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