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Rafferty v. State8/1/2001
316.1934, Florida Statutes (1997), contains express presumptions of impairment and an implied presumption of admissibility of blood alcohol test results, both of which are contingent on compliance with Florida Administrative Code Rule 11D- 8.012. Robertson v. State, 604 So. 2d 783, 789 (Fla. 1992). Rule 11D- 8.012 provides:
Blood Samples -- Labeling and Collection.
(1) All blood sample vials or tubes shall be labeled with the following information:
(a) Name of person tested;
(b) Date and time sample collected;
(c) Initials of personnel collecting the sample.
(2) Cleansing of the person's skin in collecting of the blood sample shall be performed with a non-alcoholic antiseptic solution.
(3) Blood samples shall be collected in a vial or tube containing an anticoagulant substance. Said vial or tube shall be stoppered or capped to prevent loss by evaporation.
Notably absent from the rule is any provision regulating the preservation of blood samples.
After the trial in this case, the supreme court found rule 11D-8.012 "inadequate and inconsistent with the purpose of the implied consent law as it relates to ensuring the reliability of test results." State v. Miles, 775 So. 2d 950, 955 (Fla. 2000). The court held that the State is not entitled to the presumptions of impairment under section 316.1934 when the mandate for quality assurance under the implied consent law is not enforced, regardless of compliance with rule 11D-8.012. Id. at 957. The court reasoned that, " ithout provisions for proper maintenance of a blood sample, the integrity of the sample is guaranteed only from the point of testing, regardless of the length of time that passes before the FDLE actually performs the testing." Id. at 955. The court found that the integrity of the blood sample in that case may have been compromised because the sample had been stored without refrigeration for fourteen days before it was tested. Id. Because the storage conditions reflected noncompliance with the mandate for quality assurance under the implied consent law, the State was not entitled to the presumptions of impairment. Id.
The court concluded that, in the event of noncompliance with the implied consent law, the State would have to use the common law approach as set forth in Robertson to determine admissibility. Id. at 956. This common law approach required the State to prove that (1) the blood was drawn by a person authorized under the implied consent law, and (2) the three-part test as established in Bender was satisfied. Id. at 956-57 n.9. Under the three-part test, the State must establish:
(1) the test was reliable; (2) a qualified person conducted the test with the proper equipment; and (3) the meaning of the test as explained by expert testimony. Id. (citing Robertson, 604 So. 2d at 789). The court also concluded that the statutory presumptions under the implied consent law and the common law approach were mutually exclusive, and that the State would not be entitled to the statutory presumptions in the event of noncompliance with the implied consent law, regardless of whether the common law approach was satisfied. Id. at 957.
In this case, as in Miles, the mandate for quality assurance under the implied consent law was not enforced. This case is a textbook example of how not to handle blood samples. The nurse took the blood samples from Rafferty between 9:25 p.m. and 11 p.m. on August 5, 1997. FHP Trooper Smyrnios then transported the blood samples to the FHP station. They were stored in a temporary storage facility from 1 a.m. to 1:30 p.m. on August 6, 1997. At 1:30 p.m. on that day, they were p
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