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Belvin v. State6/8/2005
Petitioner Bruce Belvin seeks certiorari review of a final decision of the Palm Beach Circuit Court, rendered in its appellate capacity, affirming his conviction and sentence for driving under the influence of alcohol. Because we agree with petitioner that admission of the breath test affidavit at his criminal trial violated his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), we grant the writ and remand this cause for a new trial.
Bruce Belvin was arrested for driving under the influence (DUI) and transported to a breath testing facility. There, he submitted to a breath test. His breath test results measured 0.165, 0.144, and 0.150. At Belvin's non-jury trial, the arresting officer testified that he made the traffic stop and requested the breath samples. He also signed a breath test affidavit, along with Breath Test Technician Rebecca Smith. Technician Smith administered the breath test and prepared the breath test affidavit, but she did not testify at trial. Belvin objected to introduction of the breath test affidavit, arguing that admission of the affidavit violated his constitutional right of confrontation under Crawford. The trial court overruled petitioner's objection and received the breath test affidavit into evidence. The court found Belvin guilty of DUI.
Petitioner appealed his conviction and sentence to the circuit court. The circuit court initially reversed the county court conviction, but affirmed it on rehearing, holding that breath test affidavits are not testimonial in nature, and therefore, the Confrontation Clause does not apply. The circuit court's ruling prompted this petition for writ of certiorari.
In Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995), the supreme court discussed the standard of review that applies when a district court reviews an appellate decision of a circuit court. The court explained that the proper inquiry is whether the circuit court afforded the petitioner procedural due process and applied the correct law. Failure to apply the correct law, which is synonymous with a departure from the essential requirements of the law, is something more than a simple legal error. Id. at 528. To warrant a writ of certiorari, the error must be "serious enough to constitute a departure from the essential requirements of the law." Id. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Id. (citing Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983)).
The state argues that the petitioner has not made an adequate preliminary showing that the circuit court's decision violated "a clearly established principle of law." In so arguing, the state asserts that the county court properly admitted the affidavit pursuant to sections 316.1934(5) and 90.803(8), Florida Statutes, and based on controlling precedent from our district. See Gehrmann v. State, 650 So. 2d 1021 (Fla. 4th DCA 1995) (denying certiorari review of a circuit court appellate decision holding that section 316.1934(5) does not violate the confrontation clause); State v. Irizarry, 698 So. 2d 912 (Fla. 4th DCA 1997) (holding that a breath test affidavit that complies with section 316.1934(5) is admissible into evidence without proof of maintenance of equipment).
Section 316.1934(5), Florida Statutes, provides:
An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by § 316.1932 or 316.1933, is admissible in evidence under the exception to the hearsay rule in § 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumpti
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