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State v. Muldowny2/27/2004
This appeal is before this court after a county court suppressed the results of intoxilyzer tests in two different cases in which Timothy Muldowny and William E. Pitts were charged with driving under the influence of alcohol. This court accepted jurisdiction after the county court certified the following questions to be of great public importance pursuant to rule 9.160, Florida Rules of Appellate Procedure:
Is a defendant entitled to inspect and copy and potentially use at trial or hearing the operator's manuals, maintenance manuals and schematics of the intoxilyzer? Assuming the answer to the above question is yes, is the appropriate remedy exclusion of the breath test for the state's failure to provide such documentation?
Under rules 9.030(b)(4)(A) and 9.160, Florida Rules of Appellate Procedure, this court has discretionary review of non-final orders of a county court containing a question certified to be of great public importance. Such is the case here. See also State v. Slaney, 653 So. 2d 422, 424 (Fla. 3d DCA 1995) (holding District Court of Appeal has jurisdiction to entertain state's appeal from a non-final order of the county court certified to be of great public importance).
Under rule 9.160(f)(1), once this court accepts the appeal, "it will decide all issues that would have been subject to appeal if the appeal had been taken to the circuit court." See, e.g., Slaney, 653 So. 2d at 424. Because the non-final county court order suppressing the breathalyzer tests is normally subject to appeal to the circuit court and because this court accepted jurisdiction to hear the certified questions and the order suppressing the breathalyzer test, this court must also consider the suppression issue.
The issues in these two cases crystalized when the Defendants moved to produce the documentation described in the certified question. When the State failed to produce the documents, the trial court suppressed the breath results of the Intoxilyzer 5000.
The Defendants sought production of the information in order to determine whether the intoxilyzer actually used to establish their driving impairment had been substantially modified by the inclusion of parts that were not on the schematics or whether the machine was approved by the Florida Department of Law Enforcement (FDLE). Only approved breath testing machines may be used to establish impairment pursuant to section 316.1932(1)(a), Florida Statutes (2002), commonly known as Florida's "Implied Consent Law." E.g., State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992); State v. Flood, 523 So. 2d 1180 (Fla. 5th DCA 1988). FDLE rule 11D-8.003 establishes the procedures for approval of the machines.
Section 316.1932(1)(f)(4), Florida Statutes (2002), requires that when a person tested with a machine requests it, full information concerning the test is to be made available. It must necessarily follow that when a person risks the loss of driving privileges or perhaps freedom based upon the use and operation of a particular machine, full information includes operating manuals, maintenance manuals and schematics in order to determine whether the machine actually used to determine the extent of a defendant's intoxication is the same unmodified model that was approved pursuant to statutory procedures. It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery, that inhales breath samples and that produces a report specifying a degree of intoxication.
We modify the first part of the certified question to read: Is a defendant entitled to inspect and copy and potentially use at trial or hearing the operator's manua
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