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Department Of Highway Safety and Motor Vehicles v. Russell8/3/2001
the alcohol reference solution used to test the machine was actually the substance required by the administrative rules. We disagree. Betham's testimony demonstrates substantial compliance with the inspection and testing procedures required by the statutes and rules. See §316.1932(1)(b)(2), Fla. Stat. (2000). While Russell was free to introduce evidence that might cast doubt on the alcohol reference solutions or the testing procedures used on this breath testing machine, she did not.
Next, the Department asserts that the circuit court erroneously concluded that the breath test result affidavit admitted into evidence failed to comply with the requirements of section 316.1934(5), Fla. Stat. (2000). Russell contends that the breath test result affidavit, while showing the date of the most recent inspection of the machine, did not disclose the date of the most recent maintenance of the instrument. Russell argues that maintenance information is specifically required by statute if the affidavit is to be self-authenticating and admissible in evidence.
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 s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and
(e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.
The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding. (emphasis supplied).
The hearing officer admitted in evidence the breath test result affidavit which showed that the last agency inspection of the breath test machine prior to Russell's arrest occurred on July 24, 2000. The agency's inspection report for the machine, dated July 24, 2000, was also introduced. That report indicates that the machine complied with agency inspection standards and that the inspector also "performed required maintenance" on the machine. When the breath test result affidavit is considered together with the agency inspection report, it is clear that both the inspection and the required maintenance of the machine were performed by the Sheriff's office in substantial compliance with the applicable statutes and rules.
For the reasons stated herein, we issue the writ of certiorari and quash the circuit court's order.
CERTIORARI GRANTED. ORDER QUASHED.
SHARP, W. and PALMER, JJ., concur.
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