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Jenkins v. State10/13/2003
trative hearings and rule challenges held under chapter 120, we find that in this case the motion to suppress was essentially an administrative attack. The spirit of section 120.56(4) and the reasoning for the purpose of this section, "to force or require agencies into the rule adoption process," is implicated in this case. Because FDLE had already initiated the rule-making procedure for the adoption of the COA form as a rule by the time the motion to suppress was heard, there is no question that FDLE was acting expeditiously and in good faith to adopt the COA form as a rule. Thus, the State was allowed to rely upon the COA form, and is entitled to the statutory presumption of impairment.
Ultimately, the question here is not one of lack of procedures as in Miles, which may result in prejudice to a defendant because of inaccurate results. Rather, the question is whether a technical violation of administrative procedures which has been subsequently cured should invalidate a statutory presumption of impairment. Where, as in Miles II, protection of a defendant's due process rights mandates the severe remedy of denying the State utilization of the statutory presumption, the remedy in circumstances such as those in the instant case should be to require the State to prove the legitimacy of the existing procedure- which the State has done here.
The appeal is AFFIRMED. The petition is DENIED.
BARFIELD and DAVIS, JJ., CONCUR.
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