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State v. Pierre8/29/2003
In this driving under the influence (DUI) case, the county court has certified to us a question of statutory interpretation involving the "Implied Consent Law," section 316.1932(1) (a) 1., Florida Statutes (2002). Relying upon the opinion of our sister court in State v. Bodden, 27 Fla. L. Weekly D2382 (Fla. 2d DCA Oct. 30, 2002), the county court suppressed the results of Appellee's urine test, which revealed the presence of controlled substances in his urine. Because we disagree with Bodden's determination that the statute is ambiguous, we reverse the order suppressing the test results and remand this action for further proceedings.
Appellee was arrested for DUI. After he was informed that he must submit to testing of his breath and urine or his driving privilege would be suspended, Appellee complied. The breath test revealed a blood alcohol level below the legal limit, but the urine test showed the presence of cocaine, marijuana metabolites and other controlled substances. Determining that it was bound by Bodden, even though disagreeing with its holding, the county court granted a pretrial motion in limine that suppressed the urine test results, but it certified to us the following question as one involving great public importance:
Can the state introduce a defendant's urine test results of a urine sample obtained by law enforcement pursuant to Florida statute section 316.1932(1)(a), Florida's implied consent law, by establishing the traditional Bender and Robertson predicates, where the Florida Department of Law Enforcement has not promulgated rules governing the urine testing?
We have jurisdiction. Art. V, § 4(b)(1), Fla. Const. § 35.065, Fla. Stat. (2002), Fla. R. App. P. 9.160. We restate the question as follows:
Does section 316.1932, Florida Statutes (2002), require that urine testing procedures first be "approved" by the Florida Department of Law Enforcement before they may be administered to persons who are suspected of DUI?
We answer the question in the negative. In so doing, we certify that our decision directly conflicts with Bodden.
Our decision today turns on whether an ambiguity exists in the following portion of section 316.1932 (1) (a) 1., Florida Statutes (2002), commonly referred to as the "Implied Consent Law:"
Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances. . . .
(emphasis supplied). Appellee urges that this statute is unclear as to whether the urine testing procedures must be "approved" by the appropriate administrative agency, the Florida Department of Law Enforcement ("FDLE"), just as the procedures for breath and blood tests are approved. The state admits that the FDLE has not promulgated procedures for urine testing but contends that "approval" is not required by the unambiguous language of the statute. We agree.
We are urged to take either of two paths leading to the conclusion that the statute is ambiguous. The first involves the fact that "chemical test" is not defined and could arguably include urine tests. If so, the phrase "approved chemical test" would include urine tests and require that they too be approved. The language of the statute, however, clearly negates this poss
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