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Department Of Highway Safety and Motor Vehicles v. Russell8/3/2001
Petition for Certiorari Review of Decision from the Circuit Court for Seminole County Acting in its Appellate Capacity
Petitioner, State of Florida, Department of Highway Safety and Motor Vehicles (Department), seeks certiorari review of a circuit court order quashing the Department's suspension of Suzanne Russell's driver's license following her arrest for driving under the influence (DUI) in violation of section 316.193, Fla. Stat. (2000). We grant the petition and quash the circuit court's order.
On August 24, 2000, a deputy of the Seminole County Sheriff's office observed Russell's vehicle being driven in an erratic manner. The deputy stopped the vehicle, made contact with Russell, and observed that she appeared to be under the influence of alcohol. After Russell performed field sobriety exercises, she was arrested for DUI. Russell was read the implied consent warnings and agreed to submit to a breath test. Her breath test results were .119 and .124. Russell then received a DUI citation and her driving privilege was suspended as required by section 322.2615(1)(a), Florida Statutes (2000). Pursuant to section 322.2615(1)(b)(3), Russell requested a formal review of her driver's license suspension before the Bureau of Administrative Reviews.
At the conclusion of the hearing, the hearing officer determined that the evidence supported Russell's license suspension.
Russell then sought certiorari review of the hearing officer's order in the circuit court. In granting Russell's certiorari petition, the circuit court concluded that the hearing officer improperly admitted Russell's breath test results because (1) insufficient evidence was presented to prove that the alcohol reference solutions used during the monthly inspections of the breath test machine were prepared by the Florida Department of Law Enforcement (FDLE) or were from a source approved by FDLE and (2) the breath test result affidavit admitted into evidence, pursuant to section 316.1934(5), Florida Statutes (2000), failed to substantially comply with the statute.
In reviewing a final order of the circuit court acting in its review capacity, the district court is limited to determining whether the circuit court afforded procedural due process and applied the correct law. Conahan v. Dep't of Highway Safety, 619 So. 2d 988, 989 (Fla. 5th DCA 1993). For the results of a defendant's breath test to be admissible, the State must establish that the test was made in substantial conformity with the applicable administrative rules and statutes. State v. Donaldson, 579 So. 2d 728 (Fla. 1981).
Insubstantial differences or variations from approved techniques does not render the test nor the test results invalid. State v. Friedrich, 681 So. 2d 1157, 1163 (Fla. 5th DCA 1996). As part of the monthly and annual inspections of a breath test instrument, the machine must be tested with solutions of alcohol at known concentrations (reference solutions) to insure that the machine is providing accurate readings. Pursuant to Florida Administrative Code Rule 11D-8.006(2), the alcohol reference solutions must be prepared by FDLE or from an FDLE approved source. At Russell's hearing, Keith Betham, the DUI technician and agency inspector for the Seminole County Sheriff's office, testified that the alcohol reference solution used to test the Seminole County Sheriff's office breath testing machine was a premixed solution manufactured for testing purposes by a laboratory approved by FDLE.
Russell contends that the hearing officer erred in concluding that Betham's testimony was sufficient to prove compliance with rule 11D- 8.006(2). Specifically, she contends that the evidence failed to prove that
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