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Schofield v. State2/4/2004
The affidavit further constitutes "presumptive proof of the results of an authorized test." Id. If the affidavit indicates that the breath alcohol test level is 0.08 or higher, the "presumptive proof of the results" gives rise to the rebuttable presumption of impairment as set forth in section 316.1934(2). Statutes must be given their plain and ordinary meaning when their language is clear and unambiguous. See Metropolitan Dade County v. Milton, 707 So.2d 913, 915 (Fla. 3d DCA 1998). When employed in a statute, words of common usage should be interpreted in a plain and ordinary sense. Id.
FN1. Section 316.1934(5), Florida Statutes (2000), allows the admission of breath test results by affidavit. It states in pertinent part:
(5) An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and
(e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.
The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.
First, the affidavit is proper both in form and content. Schofield does not contest that the affidavit contains all of the requisite information required in section 316.1934, Florida Statutes.
Second, the officer who performed the alcohol tests on Schofield was qualified to do so. The Florida Department of Law Enforcement had certified him to conduct the tests he performed and allowed him to use the precise equipment he used to administer the tests.
Third, the officer that performed the alcohol tests on Schofield complied with the governing statutory law and administrative rules in his administration of the alcohol tests. Florida law does not require the removal of dental devices nor does the law impose an obligation on the officer to inquire about the use of dentures prior to or during the administration of alcohol tests.
Although the officer did not know that Schofield had an orthodontic plate in her mouth, Schofield's use of the device during the administration of the breath test does not necessarily render the test results invalid. The prevailing view from numerous jurisdictions that have addressed the effect of dental devices on the results of breath alcohol tests admit the test results as evidence despite the presence of dentures during the administration of the tests provided that the tests were conducted, as here, according to the governing statute and administrative rules. See People v. Witt, 258 Ill.App.3d 124, 196 Ill.Dec. 459, 630 N.E.2d 156, 158 (1994)(reversing the trial court that suppressed the alcohol breath test where proper test procedures were followed); Farr v. Director of Revenue State of Mo., 914 S.W.2d 38 (Mo.App.1996)(reversing trial court order that excluded brea
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