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[W] Department of Highway Safety and Motor Vehicles v. Alliston1/18/2002
OPINION WITHDRAWN and substitute opinion filed March 13, 2002.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, PETITIONER,
v.
JOHN R. ALLISTON, RESPONDENT.
Enoch J. Whitney, General Counsel, and Kathy A. Jimenez, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Miami, for Petitioner. Eilam Isaak, Tampa, for Respondent.
The opinion of the court was delivered by: Altenbernd, Judge
Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Robert H. Bonanno, Judge.
The Department of Highway Safety and Motor Vehicles (the DHSMV) seeks certiorari review of a circuit court order granting certiorari and quashing an order of the DHSMV. The DHSMV's order suspended the driver's license of John R. Alliston based upon his arrest for driving under the influence of alcohol. The circuit court quashed the administrative order because it concluded that the DHSMV failed to present competent, substantial evidence to establish that the breathalyzer test administered to Mr. Alliston was performed in substantial compliance with administrative rules. We conclude that the circuit court departed from the essential requirements of law because, as a matter of law, the results of the breathalyzer test were admissible in evidence before the administrative hearing officer and were presumptive proof of impairment.
On April 12, 2000, John Alliston was found asleep at the wheel of his vehicle, which was stopped in the middle of a road. After Mr. Alliston performed poorly on field sobriety tests, he was arrested for driving under the influence of alcohol and transported to a breath- testing facility. Mr. Alliston's breath test results were .231 and .235. The arresting officer issued Mr. Alliston a DUI citation pursuant to section 316.193, Florida Statutes (2000), and suspended his driving privileges pursuant to section 322.2615(1)(a), Florida Statutes (2000).
Mr. Alliston requested a formal review of his driver's license suspension. See § 322.2615(1)(b)(3). An administrative hearing officer conducted a hearing on June 14, 2000. At the hearing, the DHSMV placed into evidence a "Breath Alcohol Analysis Report" that included (1) documentation of a twenty-minute observation period and certain agency and test data; (2) an "Agency Inspection Report" dated March 21, 2000, and a "Department Inspection Report" dated April 20, 1999, for the breath test machine used to test Mr. Alliston's breath; (3) the printout from the breath test; and (4) a "Breath Test Result Affidavit."
Mr. Alliston's attorney presented the testimony of the Hillsborough County Sheriff's Department agency inspector. The agency inspector routinely inspects the breath-testing machine used to test Mr. Alliston's breath and also serves as records custodian for the machine, an Intoxilyzer 5000 series. The agency inspector was unable to recall if, in her monthly inspections, she had specifically complied with a requirement that the simulators on the machine be turned on at least thirty minutes before any test, nor could she say whether the DHSMV inspector had complied with this requirement in his last annual inspection. She also did not have the initial registration of the machine used to test Mr. Alliston. Finally, although the "Agency Inspection Report" indicated that five simulators had been used in that inspection, the "Department Inspection Report" did not indicate the number of simulators used in that inspection. Mr. Alliston asserted that because of these deficiencies, the DHSMV could not prove substantial compliance with the applicable rule
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