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Jenkins v. State10/13/2003
We have before us two consolidated cases involving the admissibility of breath test results in "Driving While Intoxicated" cases. The trial court heard a consolidated motion to suppress the breath test results for a number of similarly situated defendants including Scott Jenkins (petitioner) and James Howard (appellant). The crux of the motion to suppress involved the validity of the source of an alcohol testing solution used by the Florida Department of Law Enforcement (FDLE) to test the accuracy of breath testing machines (commonly referred to as "breathalyzers"), and the FDLE's creation and use of a form, the Certificate of Accuracy (COA), which contained standards for the proper concentrations of these alcohol testing solutions. There are two issues we must address: (I) Whether FDLE was required to engage in the rule-making process pursuant to chapter 120, Florida Statutes, the Administrative Procedures Act (APA), when it designated a sole source for the alcohol solution and created and used the COA form, and (II) if FDLE was required to promulgate a rule, what is the proper remedy when FDLE promulgated the COA form as a rule through the procedures delineated in chapter 120, Florida Statutes, after the administration of the breathalyzer tests in these cases, but prior to the challenges in the instant cases being heard.
We determine that the designation of a sole source supplier for the alcohol testing solution did not constitute an unpromulgated rule, but the creation and use of the COA form did constitute an unadopted rule as defined in the APA. We also determine that under the circumstances of these cases and the fact the COA form was properly adopted prior to the convictions of Jenkins or Howard, there is no valid reason to deny the State the ability to utilize the test results and the statutory presumption of intoxication related to the results of the breath tests in these cases.
JENKINS' CASE
On December 3, 1998, Scott Jenkins was arrested for driving under the influence (DUI), driving in violation of license restrictions (which limited his driving to business purposes only), and leaving the scene of an accident with property damage (after he collided with a yield sign). Ultimately, Jenkins entered a plea of no contest to driving in violation of license restrictions and leaving the scene of an accident. The matter proceeded to a trial in county court on the charge of DUI. Part of the evidence against Jenkins was a breath test result from an Intoxilyzer 5000, a breath analysis machine, which tested Jenkins at .180 and .179 grams per 210 liters of breath, which is well over the .08 limit.
A consolidated hearing was held on a motion to suppress the breath test results of Jenkins and other DUI defendants based on FDLE's failure to properly legitimize the use of the COA form through chapter 120 rule-making procedures. The trial court denied the motion, finding that FDLE's actions in creating parameters for the alcohol reference solution (ARS) used in inspecting the breath testing instruments and selecting an outside laboratory to provide the testing solution were not "rules" requiring chapter 120 rule-making procedures.
After a bench trial, Jenkins was found guilty of DUI. Specifically, the court found that Jenkins was driving with a breath alcohol level of more that .08 and that beyond a reasonable doubt Jenkins' normal faculties were impaired. The court emphasized, however, that the presumption of impairment based on the breath test was a factor in its determination that Jenkins was guilty.
Jenkins timely appealed his conviction to the circuit court. On August 30, 2001, the circuit court entered a written order upholding the rulin
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