 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Green v. Dep't of Highway Safety and Motor Vehicles5/23/2005
ndering the statute unconstitutional as a violation of due process.
Breath Alcohol Constitutes Evidence of Blood Alcohol
However, even without judicially including the term "breath alcohol" in the statute, the breath alcohol test results provided competent, substantial evidence that Petitioner had an unlawful blood alcohol level. "The level of alcohol in one's breath is dependent upon the level of alcohol in one's blood." State v. Brigham, 694 So. 2d 793, 795 (Fla. 2d DCA 1997). "The greater the blood alcohol concentration, the higher the breath alcohol concentration. The relationship between these two concentrations is derived by a formula . . ." Id. " or legal purposes, it is reasonable to assume that the weight of the alcohol present in one milliliter of any person's blood is equivalent to the weight of alcohol present in 2100 milliliters of that person's breath at 34 degrees centigrade." Id. "All breath testing devices currently on the National Highway Traffic Safety Administration's list of devices conforming to its model specification for breath testing equipment use this ratio." Id. "The 1:2100 ratio is also recognized by the Committee on Alcohol and Other Drugs of the National Safety Council as an accurate way to determine blood alcohol content." Id. Section 316.193(1)(b)-(c), Florida Statutes (2003), provides that a person is legally intoxicated if he has a blood alcohol level of .08 or more grams of alcohol per 100 milliliters of blood, or a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath. Clearly, a breath test reading in grams per 210 liters of breath is a legally equivalent expression of a blood alcohol level.
Due Process
Petitioner's application for formal review indicated he received notice of the license suspension and the reason for it, (i.e., because he received a citation for DUI). See Dep't of Highway Safety & Motor Vehicles v. Nikollaj, 780 So. 2d 943, 945 (Fla. 5th DCA 2001). Petitioner knew no blood test had been given, and that he had an unlawful breath alcohol. Consequently, he had actual notice of the reason his license was suspended. See id.
The petition for writ of certiorari is DENIED.
ALLEN, and LEWIS, JJ., CONCUR.
|