Florida/Georgia Personal Injury & Workers Compensation

..."Alcoholic beverages" are considered to be beer, wine, whiskey, and all other alcoholic beverages of any kind and description which are made for human consumption. [Page A-18] *1196 Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c)....

...(___) is a chemical substance under Florida law. 877.111(1) Ch. 893, F.S. (___) is a controlled substance under Florida law. Note to In appropriate cases, an instruction may be given on one Judge or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c)....

...rsonal [Page A-22] *1200 disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to In appropriate cases, an instruction may be given on one Judge or more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c)....

...§ 316.1933(2)(b), Fla. Stat. (1987) (emphasis added). Once a blood-alcohol test is validly taken under subsection 316.1933(2), the Florida Statutes then create a presumption that anyone with a blood-alcohol content of 0.10 percent or more is impaired. § 316.1934(2)(c), Fla....

...d by an individual possessing a valid permit issued by the department for this purpose. Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid. § 316.1934(3), Fla....

...We find this language plain and unambiguous. Under both statutes, the test "must have been performed ... by an individual possessing a valid permit." Id. While there are "substantial compliance" clauses and a separate "savings" clause in the case of section 316.1934(3), by their own terms these clauses apply only to the "methods approved by [HRS]" and the "approved techniques and actual testing procedures." There is no reference whatsoever to "substantial compliance" in connection with the licen...

...Since there is no statutory ambiguity here, we have no need to resort to rules of construction, nor may we vary the language beyond its plain meaning. Accordingly, we hold that the test conducted by Dr. Duer in this instance was not an authorized test within the meaning of subsections 316.1933(2)(b) and 316.1934(3), Florida Statutes (1987), because Dr....

...While the jury was told that a blood-alcohol level of 0.10 percent or higher could be an element of the crime, [14] this instruction clearly was derived from the statutory elements of DUI manslaughter, § 316.193, Fla. Stat. (1987), not from the statute creating a presumption of impairment. § 316.1934, Fla....

...In my view, the majority opinion does not change this principle. SHAW, J., concurs. SHAW, Justice, concurring in result. I agree that because the person testing Robertson's blood did not possess the "valid permit issued by the department [of Health and Rehabilitative Services]," required by section 316.1934(3), Florida Statutes (1987), the presumption afforded in section 316.1934(2)(c), Florida Statutes (1987), is not available to the State in its prosecution of this case....

...la. Stat. (1987). [3] The parties have not raised, and we do not address, the propriety of this procedure under the various provisions of article I of the Florida Constitution. [4] The implied consent law consists of sections 316.1932, 316.1933, and 316.1934, Florida Statutes (1987), which essentially require all persons accepting a license to drive in Florida to consent to a blood-alcohol test upon being arrested for driving under the influence....

...91-255, §§ 2-3, Laws of Fla. (1991). However, these changes are not applicable to the present case. [10] This includes the presumption that the test is reliable if conducted according to HRS regulations and the presumptions of impairment created by section 316.1934....

...The second of these is a strict-liability theory, since the fact of operating a motor vehicle with a blood-alcohol level of 0.10 or higher is an offense even if impairment cannot be proven. There is some redundancy in the statute, however, since impairment is presumed if the blood-alcohol content is 0.10 or higher. § 316.1934(2), Fla....

...(_________) is a controlled substance under Florida law. F.S. 893. (_________) is a chemical substance under Florida law. F.S. 877.111(1). When appropriate, give one or more of the following instructions on the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c)....

...F.S. ( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1....

...death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: *146 (2)(a)1....

...( ) is a chemical substance under Florida law. 877.111(1) Ch. 893, ( ) is a controlled substance under Florida law. F.S. Note to In appropriate cases, an instruction may be given on one or Judge more of the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)1....

...Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee. EHRLICH, Chief Justice. We have for review Rolle v. State, 528 So.2d 1208 (Fla. 4th DCA 1988), in which the district court held unconstitutional section 316.1934(2)(c), Florida Statutes (1985), and the corresponding jury instructions....

...the drunk driving law, section 316.193(1), Florida Statutes (1985). Rolle was sentenced to one year in the county jail. The district court reversed the conviction and sentence and remanded the cause for a new trial. The district court concluded that section 316.1934(2)(c), Florida Statutes (1985), and the corresponding jury instruction shifted the burden of proof to the defendant on an element of the crime, impairment, in violation of the due process clause of the United States Constitution....

...tself to establish that the Defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence. (Emphasis added.) This instruction derived from section 316.1934(2), Florida Statutes (1985), [2] which creates three categories of blood-alcohol levels and assigns a different evidentiary value to each: (a) If there was at that time 0.05 percent or less by weight of alcohol in the person's blood,...

...cent or higher to be substituted for proof of impairment — not as an unconstitutional presumption, but as an alternate element of the offense. [3] We *1157 therefore find no constitutional error in the challenged jury instruction. We also find that section 316.1934(2)(c), Florida Statutes, creates a permissive inference, not an unconstitutional presumption....

...Accordingly, I believe that the instruction on the alternative impairment theory of driving under the influence violated Rolle's due process rights. KOGAN, J., concurs. NOTES [1] Section 316.028 was renumbered in 1977 as section 316.193. [2] Prior to 1982, section 316.1934 was numbered as section 322.262....

...in this context now that DUI and DUBAL have been consolidated. However, the legislature did not amend this section when it consolidated DUI and DUBAL in 1982. See ch. 82-155, Laws of Fla. It should also be noted, however, that while the inference in section 316.1934(2)(c) is essentially irrelevant in a case involving only a violation of section 316.193 (DUI and DUBAL), until 1986 it still served an important function with respect to prosecutions under section 316.1931, Florida Statutes (DWI), because proof of impairment was required....

...Because Appellant failed the tests, and due to other observations the trooper made, Appellant was placed under *617 arrest. Subsequently, the trooper administered two breath tests, which determined Appellant's blood alcohol level to be .151 and .132. The State, over objection and relying on section 316.1934(5), Florida Statutes (2002), offered into evidence an affidavit that would serve as "presumptive proof" of the results of Appellant's breath test....

...certified to operate the instrument, how the trooper operated the instrument, and when the trooper used the instrument on Appellant, it did not appear to be malfunctioning. Critical here, the affidavit was also relied upon by the State, pursuant to section 316.1934(5)(e), Florida Statutes (2002), to establish "the date of performance of the most recent required maintenance." If the State was unable to show the instrument had the statutorily required maintenance, the results of Appellant's test would be inadmissible....

...An "unborn quick child" is a viable fetus. A fetus is viable when it becomes capable of meaningful life outside the womb through standard medical measures. In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by § 316.1934(2)(a)-(c), Fla. Stat., as follows: When appropriate, give one or more of the following instructions on the "presumptions of impairment" established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla....

...(______) is a controlled substance under Florida law. Ch. 893, Fla. Stat. (______) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. When appropriate, give one or more of the following instructions on the "presumptions of impairment" established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla....

...( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. When appropriate, give one or more of the following instructions on the "presumptions of impairment" established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla....

...*593 ( ) is a controlled substance under Florida law. Chapter 893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. When appropriate, give one or more of the following instructions on the "presumptions of impairment" established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla....

..."Serious bodily injury" means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by *596 §§ 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat., as follows: When appropriate, give one or more of the following instructions on the "presumptions of impairment" established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla....

...The extent of intoxication at this level was not established by the state. A blood alcohol level of.10 gives rise to a presumption in DUI prosecutions that a person is under the influence of alcohol to the extent that normal faculties are impaired. § 316.1934, Fla....

...The term "normal faculties" is defined as including "the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life." § 316.1934(1), Fla....

...e person's normal faculties are impaired; (b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. Section 316.1934(2), Florida Statutes (1993), specifically provides that impairment is presumed *36 where a chemical analysis of blood or physical test of breath shows a BAC of 0.08 or higher....

...ers. Therefore, we must answer the fourth certified question in the negative. Accordingly, we hold that HGN test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Section 316.1934, and may not be used to establish a BAC of 0.08 percent or more....

...Fla. Stat. (1993). "Normal faculties include ... the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life." Id. § 316.1934(1)....

...If we are to answer the fourth certified question, then I agree that an HGN-based alcohol calculation cannot be used to establish an alcohol level of 0.08% or greater, see id. § 316.193(1)(b), nor may it be used to trigger any impairment presumptions under section 316.1934, Florida Statutes....

...The study conducted by the group revealed that BAC can be accurately estimated from the angle of onset of nystagmus. The research group recommended the walk and turn test, the one leg stand and the HGN as being the most reliable indicators of alcohol impairment. [21] Section 316.1934 provides in relevant part: (1) It is unlawful and punishable as provided in chapter 322 and in s....

...[28] The officer's report is in the record, but the officer's testimony was not taken. As explained in the majority opinion, "The drug influence evaluation will not be conducted if the breath test result is consistent with the degree or type of impairment." Majority opinion at 26 n.4. Under section 316.1934(2)(b), Florida Statutes (1993), a 0.07% reading does not give rise to any presumption that the defendant was, or was not, impaired....

...See § 775.084(4)(a)(3), Fla. Stat. (Supp. 1988). [5] Under different facts, the substantive terms of the habitual felony offender statute may be applicable to felony DUI defendants who otherwise qualify for enhanced punishment under that statute. [6] § 316.1934(4), Fla....

...The court denied the motion to suppress, but ruled that because of the statute's failure to provide for preservation and the deficiency of the rule in protecting the integrity of the process, the State would not be entitled to the presumption of impairment provided for pursuant to section 316.1934(2)(c), Florida Statutes (1995)....

...es of Robertson, and thus certified the aforementioned question. See id. THE IMPLIED CONSENT LAW To address the problem of drunk driving on Florida roads, the Legislature enacted what is known as the implied consent law. See §§ 316.1932, 316.1933, 316.1934, Fla....

...l or a prohibited substance. See id. Furthermore, under the statutory scheme for driving under the influence, the State is entitled to certain presumptions of impairment upon the establishment of a given alcoholic blood content of the defendant. See § 316.1934(2), Fla....

...The drivers of all three vehicles tested positive for blood alcohol in varying degrees, although respondent's was the highest. In two tests, respondent showed a blood alcohol level of.173 and .160, respectively. In Florida, a driver is presumptively intoxicated if his or her blood alcohol exceeds.100. § 316.1934, Fla....

...Belvin objected to introduction of the breath test affidavit without the breath test technician being present at trial and subject to cross-examination. He argued that the affidavit was hearsay and that he had a statutory right to subpoena the technician for trial, pursuant to section 316.1934(5), Florida Statutes....

...of the trial court's decision to admit the breath test affidavit violated "a clearly established principle of law." The state contends that the county court properly admitted the affidavit as a public records hearsay exception, pursuant to sections 316.1934(5) and 90.803(8), Florida Statutes, and based on our decisions in Gehrmann v....

...Donaldson, 579 So.2d 728 (Fla.1991). To simplify the state's burden in presenting this evidence, the legislature passed laws allowing the state to introduce at trial an affidavit containing the necessary evidentiary foundation for breath test results. See §§ 316.1934(5); 90.803(8), Fla. Stat. These statutory provisions permit breath test affidavits to be admitted as a public *1049 records exception to the hearsay rule. Section 316.1934(5) 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....

...ters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s....

...."); see also id. at 75, 124 S.Ct. 1354 (Rehnquist, C.J., noting in his concurrence that "the Court's analysis of `testimony' excludes at least some hearsay exceptions, such as business records and official records"). The state maintains that, because sections 316.1934(5) and 90.803(8) expressly state that breath test affidavits are public records and reports, they are not testimonial....

...But the statutory listing of breath test affidavits under the public records and reports exception to the hearsay rule does not control whether they are testimonial under Crawford. In Gehrmann v. State, 650 So.2d 1021 (Fla. 4th DCA 1995), we held that section 316.1934(5), Florida Statutes (1991), which permits breath test affidavits to be introduced in evidence, does not violate the confrontation clauses of the federal and Florida constitutions. However, Gehrmann was decided before Crawford and must be re-examined in light of that case. In Gehrmann, we concluded that the breath test affidavit, in its entirety, is admissible under section 316.1934(5)....

...The state argues on rehearing that to preclude admission of breath test affidavits without an opportunity for cross-examination, we must also recede from our holding in Irizarry, 698 So.2d at 912. We disagree. In Irizarry, we did not decide whether admission of the breath test result affidavit under section 316.1934(5), Florida Statutes, violated the Confrontation Clause....

...or testimonial statement, is present at a deposition, and so conducts the cross examination of the witness that it might satisfy Crawford. " Contreras, 910 So.2d at 909. Those circumstances, however, are not present in this case. As mentioned above, section 316.1934(5), Florida Statute gives a defendant the right to subpoena the breath test operator as an adverse witness at trial....

...m to me to qualify as business records, avoiding the reach of Crawford. See, e.g., Napier v. State, 827 N.E.2d 565, 569 (Ind.Ct.App.2005) ("no requirement that live testimony must be offered as to instrument or operator certification"). In addition, section 316.1934(5), Florida Statutes (2004), provides that "[a]dmissibility 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 crimin...

...chine itself remained accurate. [2] Accord § 316.1932(1)(b)(1), Fla. Stat. (1987) ("Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid."); § 316.1934(3), Fla....

...However, coming from the opposite direction and out of a long straightaway was the victim, James O. Houghton, driving with a blood alcohol level later determined by the medical examiner to have been .19 percent at the time of the wreck, or nearly twice the level at which his faculties presumably would have been impaired. See Section 316.1934(2)(c), Florida Statutes (1987)....

...522, 779 P.2d 1261 (1989); State v. Ladwig, 434 N.W.2d 594 (S.D. 1989); State v. Rollins, 141 Vt. 105, 444 A.2d 884 (1982). While there is some theoretical logic in the rationale of these opinions, we prefer the majority view. In a case involving DUI by impairment, section 316.1934, Florida Statutes (1989), provides that 0.10 percent or more by weight of alcohol in the blood shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired....

...of [the] section, including definitions," and sections 316.1932(1)(a)(2)(f), (g), and (p) address FDLE's authority to "approve" operators, instruments, and repair facilities relating to breath and blood testing. Finally, sections 316.1933(2)(b) [11] and 316.1934(3) [12] both provide that chemical analysis of a person's blood and breath must be performed "substantially in accordance with methods approved by [FDLE]." Significantly, there is no mention of urine testing in any of these subsections of the implied consent law....

...Breath and blood tests detect alcohol content, whereas urine tests detect controlled substances. See § 316.1932(1)(a)(1). If an individual has a certain level of alcohol in his or her system, the State benefits from the presumption of impairment. See § 316.1934....

...For this purpose, the department may approve satisfactory techniques or methods. (Emphasis supplied.) [11] Section 316.1933 addresses the right to use reasonable force when conducting blood tests for impairment or intoxication in case of death or serious bodily injury. [12] Section 316.1934 addresses testing methods that must be employed in order for the State to benefit from the statutory presumption of impairment....

...4th DCA June 20, 2001). The primary issue presented to us by Mr. Tyner is whether he was convicted of the DUI offense based upon the proof admitted at trial relative to his blood alcohol level and the improper application of the presumption of impairment created by section 316.1934, Florida Statutes (1995). The State concedes that it was not entitled to the use of the presumption of impairment created by section 316.1934 because Mr. Tyner's blood alcohol test and results were not obtained in accordance with the core policies of the implied consent law, sections 316.1932, 316.1933 and 316.1934, Florida Statutes (1995)....

...Tyner was properly convicted because the evidence of his blood alcohol test results were admitted after the establishment of the three-prong predicate set forth in Robertson. The jury was not instructed regarding the presumption of impairment created by section 316.1934, nor did the State argue the presumption to the jury....

...The second of these is a strict-liability theory, since the fact of operating a motor vehicle with a blood-alcohol level of 0.10 or higher is an offense even if impairment cannot be proven. There is some redundancy in the statute, however, since impairment is presumed if the blood-alcohol content is 0.10 or higher. § 316.1934(2), Fla....

...ion) and/or (2) strict liability for unlawful blood alcohol *867 (DUBAL). We observe that the legislature continues to specifically recognize the offense of driving with an unlawful blood alcohol level as an alternative to an impairment DUI offense. Section 316.1934(2)(c), Florida Statutes (2000), provides: If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired....

...In this case, the circuit court did not apply the correct law. Pursuant to section 322.2615(11), the formal review hearing for this type of license suspension may be conducted based upon a review of the reports of the arresting officer and the documents related to the administration of the breath test. Section 316.1934(5), Florida Statutes (2000), provides that an affidavit containing the results of any breath alcohol test authorized by section 316.1932, Florida Statutes (2000), is admissible in evidence without further authentication and is presum...

...basis for admitting the test results into evidence. [3] The presence of 0.10 percent or more by weight of alcohol in the person's blood is prima facie evidence that such person is under the influence to the extent his normal faculties are impaired. § 316.1934, Fla....

...State, 389 So.2d at 295, and R.C.G. v. State, 362 So.2d at 166, although the question of admissibility was not discussed. Defendant makes a related argument that the trial court erred by instructing the jury on the statutory presumptions for blood alcohol levels. See § 316.1934(2), Fla.Stat. (1993). By virtue of the instruction, the jury was aware that for the .03 and .05 levels, it was presumed that the defendant was not impaired. See id. § 316.1934(2)(a)....

...1989) (pen registers regulated under Article I, section 23 of the Florida Constitution) with Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (pen registers; Fourth Amendment). Indeed, it is the established law of this state that Florida's implied consent statutes [§§ 316.1932, 316.1933, 316.1934, Fla....

...uch a blood sample "must have been performed substantially in accordance with methods approved by the Department of Health and Rehabilitative Services [4] and by an individual possessing a valid permit issued by the department for this purpose," but Section 316.1934(3), Florida Statutes (1991) provides that "[a]ny insubstantial differences between approved techniques and actual testing procedures in any individual case, shall not render the test or test results invalid." [5] Section 316.1932(1)(a), Florida Statutes (1991) also provides that a "urine test shall be ......

...(1993), includes a "licensed practical nurse" among the acceptable blood-withdrawal personnel. [4] The current version of the statute, § 316.1933(2)(b), Fla. Stat. (1993), places responsibility for approval of chemical analysis methods on "the Department of Law Enforcement." [5] The current version of the statute, § 316.1934(3), Fla....

...gular course of business, by production of such records.") (citing State v. Bender, 382 So.2d 697 (Fla.1980)). See § 316.1932, Fla. Stat. (2006) (providing testing methods for alcohol blood level, including breathalyzers, and implied consent rule); § 316.1934(3), Fla....

...(Specific substance alleged) is a chemical substance under Florida law. Chapter 893, Fla. Stat. (Specific substance alleged) is a controlled substance under Florida law. In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by § § 316.1934(2)(a), (2)(b), and (2)_(c), Fla....

...Gen., Tampa, for respondent. EHRLICH, Justice. We have for review Wilhelm v. State, 544 So.2d 1144, 1146 (Fla.2d DCA 1989), which certified the following as a question of great public importance: DOES THE JURY INSTRUCTION BASED ON THE STATUTORY PRESUMPTION CONTAINED IN SECTION 316.1934(2)(c), FLORIDA STATUTES (1986), CREATE AN UNCONSTITUTIONAL MANDATORY REBUTTABLE PRESUMPTION? We have jurisdiction....

...Therefore, due process requires that the state bear the burden of proof beyond a reasonable doubt, alternatively called the burden of persuasion, that Wilhelm was intoxicated. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The language of this instruction is taken almost verbatim from section 316.1934(2)(c), Florida Statutes (1985), which states: (c) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, that fact shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired... . (Emphasis added.) In State v. Rolle, 560 So.2d 1154 (Fla. 1990), we recently held that *3 section 316.1934(2)(c) creates a permissive inference, not an unconstitutional presumption....

...The second issue in this case involved the admissibility of the blood alcohol test results and the propriety of the jury instructions regarding the presumption of impairment as provided by the implied consent law. The implied consent law is embodied in sections 316.1932 to 316.1934, Florida Statutes (1997), and provides that anyone who drives a motor vehicle impliedly consents to be tested for blood alcohol content upon arrest for any offense committed while driving under the influence....

...The purpose of the implied consent law is to "ensure reliable scientific evidence for use in future court proceedings and to protect the health of those persons being tested, who by this statute have given their implied consent to these tests." State v. Bender, 382 So.2d 697, 699 (Fla.1980). Section 316.1934, Florida Statutes (1997), contains express presumptions of impairment [2] 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....

...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....

...2d DCA 1999) (holding that the fact that a defendant had a child to support did not support a downward departure). Reversed and remanded. FULMER and DAVIS, JJ., Concur. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [2] Section 316.1934(2), Florida Statutes (1997), provides for the following presumptions regarding impairment: (1) if the blood alcohol level is .05 percent or less, there is a presumption the defendant is unimpaired; (2) if the blood alcohol level is g...

...A person is deemed to be under the influence of alcoholic beverages when (1) affected to the extent that the person's normal faculties are impaired or (2) when the person has a blood-alcohol level of 0.08 percent or higher. [2] The Implied Consent Laws (sections 316.1932 through 316.1934) provide procedures for gathering and testing physical evidence for DUI investigations and prosecutions....

...I believe the legislature may have been impressed by some studies showing a strong association or correlation between the consumption of even small amounts of alcohol and a lessening of motor functions and reaction abilities in humans. [15] See also § 316.1934(2)(c) ("[A] person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.")....

...Based on these statements, Miller's counsel filed a motion to suppress the results of the test on grounds of irrelevance and prejudice. The trial court granted the motion and certified a question to the Third District. The Third District relied on section 316.1934(2), Florida Statutes (1987), to reverse the trial court....

...and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for respondent. PER CURIAM. We have for review State v. Mehl, 602 So.2d 1383 (Fla. 5th DCA 1992), which certified two questions of great public importance: Can the State introduce into evidence pursuant to section 316.1934 blood sample test[] results even though HRS has not adopted rules governing testing and maintenance of equipment approved for use in the testing of blood samples? Can the State introduce into evidence pursuant to section 316.1934 blood sample test results conducted in accordance with the HRS rules promulgated as 10D-42.028, et seq.? Id....

...tutes (1989). The Fifth District reversed. The district court found that section 316.1932 was not applicable to this case; that the blood sample instead was taken pursuant to section 316.1933; and that the presumption of admissibility established in section 316.1934 must prevail here....

...o may wish to obtain a testing permit should be apprised in advance of all approved methods of administering the test. Therefore, beginning at 12:01 a.m. on April 1, 1994, the State shall not be allowed the benefit of the presumptions established in section 316.1934, Florida Statutes (1989), unless (a) the state has established reasonably definite rules specifying the precise methods of blood alcohol testing that are approved for use in this State, and (b) the State and its agencies substantially comply with these rules....

...the test was performed substantially in accordance with approved methods, that is, by a person trained and qualified to conduct it, on an approved machine that has been tested and inspected. See State v. Donaldson, 579 So.2d 728 (Fla.1991). Sections 316.1934(5) and 90.803(8), Florida Statutes (2007), provide for the introduction of affidavits containing the necessary evidentiary foundation as a public records exception to the hearsay rule. Such an 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 of a defendant. § 316.1934(5), Fla....

...ters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s....

...A breath test affidavit is created under circumstances where the technician is expecting it will be used at a later trial. More precisely, the sole purpose of a breath test affidavit is to authenticate the results of the test for use at trial. See § 316.1934(5), Fla....

...Stat. (2007). The State argues that a common thread in testimonial statements is that they generally contemplate the examination of a declarant and the give-and-take of questions and answers. The State claims the breath test affidavits provided for in section 316.1934(5) simply involve a technician's observations regarding the administration of a breath test, not the examination of a declarant and the give-and-take of questions and answers....

...1354 ("Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records...."). The State contends, citing United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir.1985), that the breath test affidavits provided for in section 316.1934(5) are routine, objective observations, made as part of the everyday function of the preparing official and involve a technician mechanically registering an unambiguous factual matter....

...Third, the defendant is not entitled to be present during a discovery deposition pursuant to rule 3.220(h). Based on this analysis, we cannot conclude that Belvin waived his opportunity to cross-examine technician Smith by failing to depose her under rule 3.220(h)(1)(D). Furthermore, even though section 316.1934(5) gives a defendant the right to subpoena the breath test operator as an adverse witness at trial, the statutory provision does not adequately preserve the defendant's Sixth Amendment right to confrontation....

...Moreover, even if this breath test affidavit was testimonial, I would not exclude it. I would follow the decision of the Colorado Supreme Court in Hinojos-Mendoza and of the Virginia Supreme Court in Magruder v. Commonwealth [2] and hold that Belvin waived his opportunity to cross-examine. Section 316.1934(5), Florida Statutes (2007), [3] provides that the "[a]dmissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination *531 as an adverse witness at a civil or criminal trial or other proceeding." Belvin did not do this....

...283, 657 S.E.2d 113 (2008) (holding under an analogous statute that defendants waived their opportunity to cross-examine analysts). [3] I agree with the Fourth District's decision in State v. Irizarry, 698 So.2d 912 (Fla. 4th DCA 1997), that State v. Donaldson, 579 So.2d 728 (Fla.1991), has been superseded by section 316.1934(5), Florida Statutes (effective July 1, 1991).

...but failed to establish substantial compliance with the relevant regulations adopted by HRS pursuant to the mandate of section 316.1933(2)(b), Florida Statutes (1991). [2] In light of this deficiency, we agree *1108 that the presumption afforded in section 316.1934(2)(c), Florida Statutes (1991), should not have been available to the state....

...Separate convictions and penalties, in these circumstances, violate double jeopardy. Accordingly, we reverse one conviction each of simple DUI and driving with a suspended license, and vacate the judgments and sentences entered on those counts; in all other respects we affirm. DANAHY and SCHOONOVER, JJ., concur. NOTES [1] Section 316.1934, Florida Statutes (1991), provides that 0.10 percent or more by weight of alcohol in the blood shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired....

...lcohol level. [2] State v. Palmore, 495 So.2d 1170 (Fla. 1986); State v. McPhadder, 452 So.2d 1017 (Fla. 1st DCA 1984); State v. Segura, 378 So.2d 1240 (Fla. 2nd DCA 1979). [3] Controlled substances under section 893.03, Florida Statutes (1985). [4] Section 316.1934(2), Florida Statutes (1985): "Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of, a vehicle while under the inf...

...§ 316.1932 or § 316.1933 and this section shall be admissible into evidence when otherwise admissible, ... ." [5] There is no issue raised in this appeal regarding the competency of the evidence. [6] Fla. Std. Jury Instr. (Crim.) F.S. 316.193. [7] Section 316.1934(2), Florida Statutes (1985), provides a statutory presumption of impairment upon evidence of a specific percent blood alcohol level....

...Appellant, Carlton Rolle, was charged and convicted of felony driving under the influence in violation of section 316.193, Florida Statutes (1985), for which he was sentenced to one year in the county jail. He presents two points for appellate consideration, only one of which we find constitutes reversible error. Section 316.1934(2)(c), Florida Statutes (1985), provides: (2) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle wh...

...Dennis Wayne Servis appeals his conviction for DUI manslaughter pursuant to section 316.193(3)(a)(b)(c)(3), Florida Statutes (1999). He was convicted after a trial in which instructions were given to the jury over his objection regarding statutory presumptions of impairment pursuant to section 316.1934(2), Florida Statutes (1999)....

...JUDGMENT AND SENTENCE VACATED; REMANDED. THOMPSON, C.J., and PLEUS, J., concur. NOTES [1] Rule 11D-8012 was subsequently revised on July 29, 2001 to prescribe specific procedures for the collection and preservation of the blood sample. [2] Fla. Stat. §§ 316.1932-316.1934 (1999).

...White, Assistant Attorney General, Tallahassee, for Appellant. Barry W. Beroset of Beroset & Keene, Pensacola, for Appellee. JOANOS, J. The State of Florida appeals an order in which the trial court ruled that the state will not be entitled to a presumption pursuant to section 316.1934, Florida Statutes (1995), in its prosecution of appellee on charges of driving under the influence of alcohol (DUI)/manslaughter, vehicular homicide, DUI causing personal injury, and DUI causing property damage....

...The issue in this case concerns one of the rules promulgated by the Florida Department of Law Enforcement (FDLE) to implement the provisions known as Florida's implied consent law. "The implied consent law consists of sections 316.1932, 316.1933, and 316.1934, Florida Statutes, which essentially require all persons accepting a license to drive in Florida to consent to a blood-alcohol test upon being arrested for driving under the influence." See Robertson v....

...blood samples is inadequate to address the core policies of the state to ensure preservation of a blood sample which will result in an accurate analysis. Based on this finding, the trial court ruled the state was not entitled to a presumption under section 316.1934, Florida Statutes....

...While the trial court did not directly rule on the constitutionality of the statute or the rule in question, the court did, however, find that the failure to adopt rules resulted in a denial of due process. The trial court concluded, therefore, that the state would not be entitled to any of the presumptions contained in section 316.1934, Florida Statutes, even if it independently established a proper predicate for the admission of the test result....

...o may wish to obtain a testing permit should be apprised in advance of all approved methods of administering the test. Therefore, beginning at 12:01 a.m. on April 1, 1994, the State shall not be allowed the benefit of the presumptions established in section 316.1934, Florida Statutes (1989), unless (a) the state has established reasonably definite rules specifying the precise methods of blood alcohol testing that are approved for use in this State, and (b) the State and its agencies substantially comply with these rules....

...vely deprive the state of the statutory presumption for the failure to adopt additional rules. It is this last point which is significant in the context of the remedy fashioned by the trial court in this case. There are two presumptions contained in section 316.1934, Florida Statutes....

...the test result [1] in evidence. Breathalyzer test results are admissible into evidence only upon compliance with the statutory provisions and the enacted administrative rules. State v. Bender, 382 So.2d 697 (Fla. 1980). Sections 316.1932(1)(b)1 and 316.1934(3), Florida Statutes (1987), provide that an analysis of a person's breath, in order to be considered valid, must be performed substantially in accordance with methods approved by HRS....

...No one testified about the maintenance of the machine nor whether the particular machine was registered with HRS and approved for calibration and performance. Such cannot be considered "insubstantial differences between approved techniques and actual testing procedures." § 316.1934(3), Fla....

...a moton to suppress. The motion contended the results should be excluded because the mandatory inspection and maintenance rule had been violated. The court found the violation de minimus and insubstantial and, thus, covered by the savings clause of section 316.1934(3), Florida Statutes (1985)....

...cohol in the person's blood [is] prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired" but a less than 0.10 percent reading does not give rise to the presumption. F.S. 316.1934(2)(b) and (c), Fla....

...nking, and witnesses on the scene of the accident testified that they had not seen or found evidence of alcohol impairment in the accident. Without objection, the trial court instructed the jury to make certain presumptions of impairment pursuant to section 316.1934, Florida Statutes (1997), based on the blood alcohol test results, including the following: If you find from the evidence that the defendant had a blood alcohol level of.08 percent [sic] or more, that evidence would be sufficient by...

...The trial court entered judgment adjudicating appellant guilty on both counts. This appeal ensued. Blood Test Validity Appellant raises several issues on appeal, most of which challenge the validity of the blood test, the central issue at trial, and the jury instruction made pursuant to section 316.1934....

...h the statutory procedures. See State v. Johnson, 814 So.2d 390 (Fla.2002). *895 Statutory Presumption of Impairment Appellant argues that the trial court reversibly erred in instructing the jury to make the statutory presumptions of impairment, see section 316.1934, Florida Statutes (1997), because rule 11D-8.012, Florida Administrative Code, the administrative rule implementing the implied consent statutes, was declared invalid under State v....

...In Miles, this court affirmed a trial court's ruling that rule 11D 8.012 did not ensure that reliable scientific evidence would be obtained using the storage procedures outlined in the rule and that, as a result, the state was not entitled to a presumption of impairment under section 316.1934....

...tioned suspension of his license. While it is true that Gamer would have been entitled to a jury trial had this prosecution occurred m the state courts of Florida, see Heidrich v. State ex rel. Blair, 490 So.2d 1306 (Fla.Dist.Ct.App.1986); Fla.Stat. § 316.1934(4) (Supp.1988), this fact does not change the result we reach today....

...means that the circuit court failed to apply the correct law and that failure resulted in a miscarriage of justice. Ivey. We conclude that the circuit court departed from the essential requirements of law when it ruled, contrary to the provisions of section 316.1934(5), Florida Statutes, that the hearing officer should not have considered Mowry's breath test results....

...required by rule 11D-8.0035. However, the fatal error in the circuit court's decision is that under the circumstances, the Department had no such burden of proving compliance with rule 11D-8.0035. The breath test affidavit is admissible pursuant to section 316.1934(5) which provides as follows: An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s....

...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. § 316.1934(5), Fla....

...nine, or ten beers." In Knight's opinion, appellant was under the influence of alcohol to the extent that his normal faculties were impaired. At the charge conference, appellant objected to the jury being instructed on the presumptions contained in § 316.1934, Fla....

...10 years in prison on the sexual battery charge, the latter sentence being credited with time already served. Appellant first contends that the trial court erred in instructing the jury as to the existence of a presumption of impairment pursuant to § 316.1934, Florida Statutes....

...In this second situation, the court's analysis should focus on whether the evidence of the presumed element ... rather than the more inclusive issue of guilt is overwhelming. 775 F.2d at 1576. The Fourth District, relying on Francis and Miller, recently held that the presumptions contained in section 316.1934(2)(c), Fla....

...We do not adhere to our prior decision in Hall because of the intervening decisions in Francis and Miller. Because this issue is one of great public importance, however, we certify to the supreme court the following question: WHETHER JURY INSTRUCTIONS BASED ON THE STATUTORY PRESUMPTIONS CONTAINED IN § 316.1934(2)(c) CONSTITUTE UNCONSTITUTIONAL MANDATORY REBUTTABLE PRESUMPTIONS....

...cohol in his blood it is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. (R. 520-22) (emphasis supplied). This instruction tracks the language contained in § 316.1934(2).

...Gen., Tallahassee, for respondent. McDONALD, Justice. In Frazier v. State, 530 So.2d 986 (Fla. 1st DCA 1988), the district court certified the following question as being of great public importance: Whether jury instructions based on the statutory presumptions contained in § 316.1934(2)(c) constitute unconstitutional mandatory rebuttable presumptions. Id. at 989. [1] The district court held subsection 316.1934(2)(c), Florida Statutes (Supp. 1986), regarding blood alcohol level, unconstitutional, but, applying the harmless error test, affirmed Frazier's DUI manslaughter conviction. We recently held subsection 316.1934(2)(c) constitutional....

...n a blood alcohol level of 0.10 percent, [3] and denied the claim for benefits. As counsel's objection asserts, the record in the present case fails to establish substantial compliance with the statutory procedure to determine blood alcohol content. Section 316.1934(2), Florida Statutes, requires such compliance for the evidentiary admission of a blood alcohol test result in: ......

...extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his normal faculties... . See Campbell v. State, 423 So.2d 488 (Fla. 1st DCA 1982); See also, State v. Bender, 382 So.2d 697 (Fla. 1980); cf., § 316.1934(3), Florida Statutes....

...3d DCA 1989), the Third District held that the results of a blood alcohol test taken 1 and 1/2 hours after the defendant's last operation of a vehicle was admissible without retrograde extrapolation. This is because the clear and unambiguous terms of Section 316.1934(2), Florida Statutes (1987) makes the test admissible subject only to exceptions not relevant here....

...While Florida's provision is not so direct, it does provide the test results "... shall be admissable ..., and the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's blood ... shall give rise to the following presumption ..." (Emphasis added). § 316.1934(2) Fla....

...Petitioners Ridgeway and Gent seek certiorari review of the final order of the circuit court acting in its review capacity, pursuant to Rule 9.030(b)(2)(B), Fla.R. App.P. [1] We deny the petition for certiorari in both cases. Petitioners were separately stopped for driving under the influence (DUI) contrary to section 316.1934, Florida Statutes, and upon arrest were administered breathalyzer tests. Defense counsel filed motions to suppress the results of the tests taken, contending that mandatory inspection and maintenance of the machine required by section 316.1934(3), Florida Statutes, and Rule 10D-42.24, Florida Administrative Code, had not been performed....

...The county court denied the motions and petitioners were separately tried by jury and found guilty of DUI. On appeal to the circuit court, the denial of the motions was affirmed. We agree with the circuit court's decision that the denial of petitioners' motions to suppress was not in error. Section 316.1934(3) provides that a chemical analysis of a person's breath must have been performed "substantially in accordance with methods approved by the Department of Health and Rehabilitative Services." The statute further provides that any ins...

...These reports, in the form breath cards, are admissible in evidence under a simplified procedure requiring the state attorney to prove only that the machines were operated and maintained in accordance with regulations promulgated by the FDLE. See §§ 316.1932(1) & 316.1934(2), Fla....

...(2005). As to the Bastos case, a breath alcohol level reading from the Intoxilyzer 5000 could be both evidence of an illegal breath alcohol level, and triggers a presumption that the person's normal faculties are impaired. See §§ 316.193(1)(c) & 316.1934(2)(c), Fla. Stat. (2005). As to the Vlad case, a breath alcohol level from the Intoxilyzer 5000 could be used as evidence that his normal faculties are impaired. See § 316.1934(2)(b), Fla....

...Such rules must specify precisely the test or tests that are approved by the Department of Law Enforcement for reliability of result and case of administration, and must provide an approved method of administration, which must be followed in all such tests given under this section.... Further, section 316.1934(2) provides that test results are "admissible into evidence when otherwise admissible, and the amount of alcohol in the person's blood or breath at the time alleged" gives rise to certain presumptions....

...ies were impaired" and "such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level." § 316.1934(2)(c), Fla....

...s provided in this subsection do not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired." § 316.1934(2), Fla....

...Farley, 633 So.2d 69 (Fla. 5th DCA 1994); State v. Reisner, 584 So.2d 141 (Fla. 5th DCA 1991). Insubstantial differences or variation from approved techniques and actual testing procedures in any individual case do not render the test nor test results invalid. § 316.1934(3), Fla.Stat....

...t based on the possible variation in range of chemical composition *1164 of the batches of stock solution and argue the test should be disregarded by the trier of fact if the breath test result is so close to one of presumptive levels established by section 316.1934(2) that a possible range in variation in the stock solution used to test the machine could have made a difference when added to the permitted range allowed for the machines pursuant to the rules....

...313, 836 P.2d 1110 (1992); State v. Straka, 116 Wash.2d 859, 810 P.2d 888 (1991). Based on the testimony in this record and the mathematics flowing therefrom, a defendant should not be subjected to the application of the statutory presumption of being impaired set by section 316.1934(2)(c) for persons testing at .08, if the breath test result is .082 or less....

...Dehart then filed a petition in the circuit court seeking certiorari review of her license suspension. The circuit court granted the petition and quashed the administrative suspension of Dehart's driver's license, ruling that the breath test result affidavit submitted by DHSMV failed to comply with section 316.1934(5) of the Florida Statutes (1999) because, although the statute requires that the date of the performance of the last required maintenance be included in the affidavit, the breath test result affidavit in this case provided the date of the last agency inspection instead....

...ural due process and applied the correct law. See Conahan v. Dep't of Highway Safety and Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993). The circuit court did not apply the correct law when it found that the breath test results were inadmissable. Section 316.1934(5) of the Florida Statutes (1999), provides in relevant part: Presumption of impairment; testing methods.— * * * (5) An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s....

...evating form over substance in quashing license suspension). Our ruling is consistent with State v. Irizarry, 698 So.2d 912 (Fla. 4th DCA 1997), wherein the Fourth District held that a breath test result affidavit prepared for use in accordance with section 316.1934(5) of the Florida Statutes (1999) is admissible in evidence without further proof of proper maintenance. The court found that Form 14, which is the standard form used in preparing a breath test result affidavit, complied with section 316.1934(5) of the Florida Statutes (1999) which allows an affidavit to be admitted without further authentication if the affidavit discloses the enumerated information contained in the statute....

...s (1985), created an unconstitutional mandatory presumption. In Falcon the court questioned the validity of Ferrari based on Rolle v. State, 528 So.2d 1208 (Fla. 4th DCA 1988), and Frazier v. State, 530 So.2d 986 (Fla. 1st DCA 1988), which both held section 316.1934(2)(c) and its corresponding jury instruction unconstitutional....

...John's County Jail policies and procedures do not permit the facility to accept prisoners who are "unconscious" or "seriously injured." In particular, their guidelines prevent acceptance of inmates with visible injuries or those with a blood/alcohol level of .30 or more. [3] See § 316.1934, Fla....

...NOTES [1] The officer testified that the defendant was alert and cooperative. The defendant tested .08 percent on the breathalyzer, less than the .1 percent required by law for a legal presumption that the person is under the influence of alcoholic beverages to the extent that his normal faculties are impaired. § 316.1934, Fla....

...Jorandby, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee. KLEIN, Judge. Defendant was arrested for DUI in June of 1996. After denying the State's motion in limine to introduce into evidence a breath test result affidavit prepared pursuant to section 316.1934(5), Florida Statutes (1995), the *913 county court certified the following question as involving a matter of great public importance: IS A BREATH TEST RESULT AFFIDAVIT PREPARED FOR USE IN ACCORDANCE WITH FLORIDA STATUTE 316.1934(5) ADMISSIBLE IN EVIDENCE WITHOUT FURTHER PROOF OF MAINTENANCE, OR MUST THE STATE INDEPENDENTLY PROVE PROPER MAINTENANCE OF THE INTOXILYZER? Our review of questions certified by county courts to be of great public importance is discretionary under Florida Appellate Rule 9.030(b)(4)(B)....

...We appreciate the explanation, accept jurisdiction, and answer in the affirmative. After State v. Donaldson, 579 So.2d 728 (Fla.1991), holding that there must be evidence that a breathalyzer test machine has been calibrated, tested and inspected, the legislature amended section 316.1934, Florida Statutes, effective July 1, 1991, adding subsection (5), see ch....

...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. In implementing section 316.1934(5), the Department of Law Enforcement has promulgated FDLE/ICP Form 14, see Fla....

...However, it may be that for some reason (such as here, the defendant's invocation of his Miranda rights), the state does not know all the variables necessary to relate the test result back to the time of driving. By its clear and unambiguous terms, section 316.1934(2), Florida Statutes (1987), [1] provides that test results administered in accordance with sections 316.1932 or 316.1933, Florida Statutes (1987), shall be admissible *393 where otherwise not rendered inadmissible....

...Because the issue involved here is one of great public importance, we certify the question presented to the Supreme Court of Florida. We thus answer the certified question in the affirmative and reverse and remand the case for further proceedings consistent with this opinion. NOTES [1] Section 316.1934(2) provides: Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoho...

...added), whereas here we have a test showing a trace amount of cocaine only, which is not merely unquantified but unquantifiable, and for which no meaningful time of ingestion can be determined. According to Weitz, the only qualifications intended by section 316.1934, Florida Statutes (1985), to admissibility of drug test results are those of competency, relevance and weight....

...) Bonine was driving while under the influence of alcoholic beverages to the extent that his faculties were impaired, or 2) he had a blood alcohol level of 0.08 or higher. The jury was also instructed as to the statutory presumption of impairment in section 316.1934....

...In such case, if the defendant denies impairment and if he is shown to have an unlawful blood alcohol level, then he would have to overcome the presumption of impairment. [3] See Dodge v. State, 805 So.2d 990 (Fla. 4th DCA, 2001): Thus, "the presumption of impairment created by [section 316.1934(2), Florida Statutes] is a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level." [4] The structure of this charged offense is similar to first de...

...on defendant's rate of absorption pre-accident and post-accident. A blood alcohol level of .08% or more is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. See § 316.1934(2)(c), Fla.Stat....

...State, *31 529 So.2d 732 (Fla. 4th DCA 1988); Nardone, 302 U.S. at 382, 58 S.Ct. 275. Similarly, the statutory scheme governing DUI breath and blood tests contains provisions requiring the exclusion of evidence obtained in violation of the statute. Section 316.1934(3), Florida Statutes (2005), provides that in order for the chemical analysis of a DUI breath or blood test to be "considered valid," the analysis "must have been performed substantially in compliance" with requirements established under the statutory scheme....

...e statute's] core policies." Robertson v. State, 604 So.2d 783, 789 (Fla. 1992). From the legislative declaration that certain test results are not valid, it follows ineluctably that those test results may not be admitted into evidence. In addition, section 316.1934(2) provides that "the results of any test administered in accordance with" the pertinent statutory provisions "are admissible into evidence when otherwise admissible." Subject to the specific provisions of the statutory scheme recogn...

...gust 8, 1989. The issue presented in the petition was whether Santiago had been deprived of his constitutional right to a fair trial because the trial court instructed the jury concerning an allegedly mandatory rebuttable presumption *803 created by § 316.1934(2)(c); Florida Statutes, 1987....

...of DUI manslaughter. Since a second objection was not necessary, we find there was no procedural bar. B. The Jury Instruction The district court held that the jury instruction given in Santiago’s trial, taken almost verbatim from Florida Statutes, § 316.1934(2)(c), created an unconstitutional mandatory rebuttable presumption which shifted the burden of proof to the accused and violated Sdndstrom v....

...shable as provided in s. 775.082, s. 775.083, or s. 775.084. 2 . After the direct appeal became final, Santiago began serving his sentence and served it in full during the pendency of his petition for writ of habeas corpus in the district court. 3 . 316.1934....

...tion of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. 4 .In Wilhelm , the Court held that a jury instruction based upon § 316.1934(2)(c), Florida Statutes (1986), created an unconstitutional mandatory rebuttable presumption because the words "prima facie” in a jury instruction would not be understood by the reasonable juror....

...denied, 591 So.2d 184 (Fla. 1991); Vernon v. State, 558 So.2d 535 (Fla. 1st DCA 1990). Ultimately, we must agree with the circuit court that the state failed to carry its burden that there was substantial compliance with the rule, as permitted under section 316.1934, Florida Statutes....

...316.193(1), and 316.193(3)(a)(b)(c)3., Florida Statutes (1999). As part of its case against Bass, the state relied on the blood alcohol test results of a blood draw administered on Bass pursuant to the state's implied consent law. See §§ 316.1932-316.1934. Pursuant to the implied consent law, the analysis to determine a person's blood alcoholic content is to be done in accordance with methods approved and set forth by the Florida Department of Law Enforcement (FDLE). § 316.1934(3)....

...Miles, 775 So.2d 950 (Fla.2000), the Florida Supreme Court found that the rules promulgated by the FDLE [1] providing for the testing of blood samples were so deficient with respect to the proper preservation of the blood that the state could not use the statutory presumptions of impairment set forth in section 316.1934(2)....

...[2] This case arose out of an automobile accident on April 18, 1999, in which Hembree was involved as a driver. One person was killed and two others were injured. We reverse for a new trial. Over defense objection, the trial court instructed the jury on the statutory presumptions of impairment in section 316.1934(2), the implied consent law. See §§ 316.1932-316.1934, Fla....

...Dep't of Highway Safety & Motor Vehicles, No. 99-13 (18th Cir. April 6, 2000). In that opinion, the court held that the breath test result affidavit, which was the only evidence in that case of the driver's blood alcohol level, failed to comply with section 316.1934(5), Florida Statutes (1999), because the affidavit did not contain the date of the performance of the most recent maintenance of the breath testing instrument....

...ation of a breath test...." See § 322.2615(11), Fla. Stat. (1999). The circuit court in this case focused solely on the affidavit of the breath test result submitted by the police officer, finding it fatally defective because it did not comply with section 316.1934(5)....

...The circuit court should have addressed the issue of whether or not there was substantial evidence in the record to support the hearing officer's findings. Here the additional document which clarified that the inspection included maintenance should have sufficed, even if the requirements of section 316.1934(5) apply to such hearings....

that his or her normal faculties were impaired.” § 316.1934(2)(c), Fla. Stat. The legislature defined the

...State, 604 So.2d 783 (Fla.1992) (requiring proof that test was reliable, performed by qualified operator with proper equipment, and expert testimony as to test's meaning). The trial court further held that the State would not be entitled to have the jury instructed on the presumptions of impairment set forth in section 316.1934(2)....

...d, it shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. (emphasis supplied). In State v. Rolle, 560 So.2d 1154 (Fla. 1990), the supreme court held that section 316.1934(2)(c) [2] creates a permissive inference, not an unconstitutional presumption of intoxication as we held in Rolle v....

...shed as a public highway or not. The dedication shall vest all right, title, easement, and appurtenances in and to the road ... whether there is a record of a conveyance, dedication, or appropriation to the public use or not. (footnote omitted). [2] Section 316.1934(2)(c), Florida Statutes (1985), contains substantially the same language as that found in section 322.262(2)(c), Florida Statutes (1981).

...ZEHMER and BARFIELD, JJ., concur. NOTES [1] The presence of 0.10 percent or more by weight of alcohol in the person's blood is prima facie evidence that such person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. Section 316.1934(2)(c), Florida Statute (Supp....

...Butterworth, Atty. Gen., and Gypsy Bailey, Asst. Atty., for appellee. ERVIN, Judge. Appellant, Larry Doyle Register, was convicted of DUI manslaughter under Section 316.193, Florida Statutes (1989). The following instruction, which was taken almost verbatim from Section 316.1934(2)(c), Florida Statutes (1989), was given to the jury: If you find from the evidence that the defendant had a .10 or more by weight of alcohol in his blood, it is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his normal faculties were impaired....

...PER CURIAM. This Petition for Writ of Certiorari is directed to the circuit court sitting in appellate capacity, which affirmed petitioner's conviction and sentence in the county court for driving under the influence of alcohol. The circuit court held that section 316.1934(5), Florida Statutes (1991) does not violate the confrontation clauses of the federal and Florida constitutions, nor does it impermissibly shift the burden of proof to the defense....

...al faculties are impaired; (b) Until his blood alcohol level is less than 0.05 percent; or (c) Until 8 hours have elapsed from the time he was arrested. The applicable law of Florida regarding the presumption of driving while intoxicated is found in § 316.1934(2)(c), Fla.Stat....

...In addition, based on the testimony of the witnesses addressing the Debtor's conduct while in police custody, abnormal driving, and voice during the 911 call, this Court finds that the Debtor was affected by his drinking to such *1023 an extent that his normal faculties were impaired pursuant to § 316.1934(2)(c), Fla.Stat....

...egal limit. This was error. In Williams v. State, 710 So.2d 24 (Fla. 3d DCA 1998), this Court held that HGN test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Section 316.1934, and may not be used to establish a BAC of 0.08 percent or more....

..."[N]ormal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life." § 316.1934(1), Fla....

...The first point, based upon the constitutionality of the DWI statute, requires reversal. However, we will mention several of the other points that require reversal in the event the Supreme Court of Florida ultimately upholds the constitutionality of the DWI statute, section 316.1934(2)(c), Florida Statutes (1985)....

...appellant, the latter advised him that he drank six to seven beers that evening, but that he was neither impaired nor at fault. At trial, over appellant's objection, the trial court instructed the jury on the presumption of intoxication set forth in section 316.1934(2)(c), Florida Statutes (1985)....

...This case is legally similar to New York Life Ins. Co. v. Coll, 568 So.2d 1306 (Fla. 3d DCA 1990). In Coll, the district court held the trial court erred in failing to take into consideration the statutory inference of one's normal faculties being impaired when the blood alcohol is 0.10. See § 316.1934(2)(c), Fla....

...-alcohol level of 0.08 grams per 210 liters or greater, he could have been charged under section 316.193(1)(b) or (c), and the State would not have had to prove impairment by any other means. See § 316.193(1)(b) and (c), Fla. Stat. (2006). See also § 316.1934(2), Fla....

...Larry Morris of Emmanuel, Sheppard & Condon, Pensacola, for appellant. Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee. MILLS, Judge. In this appeal, we are asked to determine whether the statutory presumption of impairment contained in Section 316.1934, Florida Statutes (Supp....

...4%) and the ultimate fact presumed (that Hall was under the influence of alcoholic beverages to the extent that his normal faculties were impaired). Moreover, it is clear that Hall was not denied an opportunity to rebut the State's prima facie case. Section 316.1934(2)(c), Florida Statutes (Supp....

...HOBSON, Acting Chief Judge. Russell Caverly was charged with driving a motor vehicle while under the influence of alcoholic beverages in violation of section 316.193(1)(a), Florida Statutes (1982). As charged, he was entitled to a jury trial under section 316.1934(4), Florida Statutes (1982)....

...der the influence of alcoholic beverages or controlled substances to the extent that his normal faculties were impaired, whether in a municipality or not, shall be entitled to a trial by jury according to the Florida Rules of Criminal Procedure. See § 316.1934(4), Fla....

...1982) (formerly section 860.01), although all three offenses carry the same penalties. Obviously, this incongruency merits legislative attention, but we do not think it any basis to deny a defendant a right accorded by the legislature. We ordered Caverly a jury trial based on section 316.1934(4), Florida Statutes (Supp....

...ch the jury could conclude that his blood alcohol level at the time of the accident exceeded .08 percent and that he was then under the influence of alcohol to the extent that his normal faculties were impaired within the meaning of the statute. See § 316.1934(2)(c), Fla....

...defendant had point one zero percent or more by weight of alcohol in his blood, it is a prima facie case that the defendant was under the influence of alcoholic beverages to the extent his normal faculties were impaired. This language tracks that of section 316.1934(2)(c), Florida Statutes (1986)....

...As did the First District Court of Appeal in Frazier, 530 So.2d 986, we find the issue on appeal to be of great public importance and certify the following question to the supreme court: DOES THE JURY INSTRUCTION BASED ON THE STATUTORY PRESUMPTION CONTAINED IN SECTION 316.1934(2)(c), FLORIDA STATUTES (1986), CREATE AN UNCONSTITUTIONAL MANDATORY REBUTTABLE PRESUMPTION? Affirmed....

...In both Florida and Colorado, if it is established that 0.05 percent or less by weight of alcohol is in a person's blood or breath, it is presumed that the person is not under the influence of alcoholic beverages to the extent that his normal faculties are impaired. § 316.1934(2)(a), Fla....

...The results of those tests are admissible into evidence and give rise to the presumption that (1) the person was not under the influence of alcohol if the blood alcohol level is less than 0.05, or (2) the person was under the influence of alcohol if the blood alcohol level is greater than 0.08. See § 316.1934(2)(a),(c), Fla....

...(2000). If the blood alcohol level is between 0.05 and 0.08, no presumption of impairment arises, but the test may be considered along with other competent evidence to determine the level of the defendant's impairment at the time of the accident. See § 316.1934(2)(b), Fla....

...In Tyner, the court aptly pointed out that, based on a strict liability theory, one who operates a motor vehicle with a blood-alcohol level of 0.10 or higher is guilty of a DUI offense even if impairment cannot be proven. See id. (citing Robertson, 604 So.2d at 792 n. 14). Thus, "the presumption of impairment created by [section 316.1934(2), Florida Statutes] is a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level." Id....

...d not have vitiated the fairness of the entire trial. See State v. Murray, 443 So.2d 955 (Fla.1984). The third issue is Rodriguez's claim that the trial court committed fundamental error by instructing the jury as to the statutory presumptions under section 316.1934(2), Florida Statutes....

...issue raised here, as well as below, which was not reached in the trial court. That issue is whether it is always necessary to prove the annual inspection. We hold that it is necessary only where the annual inspection was the most recent inspection. § 316.1934(5) provides: (5) An affidavit containing the results of any test of a person's blood or breath to determine its alcoholic content, as authorized by s....

...endant relies on section 11D-8.004(2), which provides that: "registered breath test instruments shall be inspected by [FDLE] at least once each calendar year . . . The inspection validates the instrument's approval for evidentiary use." Returning to section 316.1934(5), Florida Statutes, which specifies the "most recent required maintenance," we conclude that the most recent could be either the monthly, or the annual inspection, if the annual was the most recent....

...ions 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....

...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....

...ion 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: *1076 An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s....

...implied" by statute as a condition of obtaining a driver's license and the procedure deemed appropriate where law enforcement has probable cause to believe the driver had caused death or serious injury through driving under the influence of alcohol. Section 316.1934 provides: [T]he results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible *1387 into evidence when otherwise admissible... . (emphasis added). We can find no basis to conclude that section 316.1932 controls availability of the section 316.1934 presumption in the case where a blood sample is taken pursuant to section 316.1933. Because it appears that section 316.1932 does not control in this case, we must consider whether the procedure utilized by HRS complies with the terms of sections 316.1933(2)(b) and 316.1934. Sections 316.1933(2)(b) and 316.1934(3) require that a chemical analysis of a person's blood be performed substantially in accordance with methods approved [not "adopted"] by HRS and by a person possessing a valid permit issued by HRS for this purpose....

...See also, Miller v. State, 597 So.2d 767 (Fla. 1991). Because the question presented by this appeal is one of great public importance, we certify to the Florida Supreme Court the following questions: CAN THE STATE INTRODUCE INTO EVIDENCE PURSUANT TO SECTION 316.1934 BLOOD SAMPLE TESTS RESULTS EVEN THOUGH HRS HAS NOT ADOPTED RULES GOVERNING TESTING AND MAINTENANCE OF EQUIPMENT APPROVED FOR USE IN THE TESTING OF BLOOD SAMPLES? CAN THE STATE INTRODUCE INTO EVIDENCE PURSUANT TO SECTION 316.1934 BLOOD SAMPLE TEST RESULTS CONDUCTED IN ACCORDANCE WITH THE HRS RULES PROMULGATED AS 10D-42.028, ET SEQ....

...tions certified to the Florida Supreme Court. However, I cannot subscribe to any suggestion that the legislature intended different requirements regarding the administration of blood tests under section 316.1932(1)(f) and sections 316.1933(2)(b) and 316.1934(3) of the Florida Statutes (1989), depending on whether the method of blood testing is required to be "adopted" or "approved"....

...There is no rational basis to draw a distinction between blood tests in a section 316.1932 DUI case and a section 316.1933 case of driving a motor vehicle while under the influence causing death or serious bodily injury. If the language in sections 316.1933(2)(b) and 316.1934(3) of "approved methods" is to be construed to require less stringent criteria for assuring reliable blood test results, then we are faced with the question of whether such a distinction is reasonable because the effect of such a constructio...

...passed by section 316.1932. In order to avoid such a construction and because the provisions of section 316.1933 augment the provisions of section 316.1932, I conclude that the provisions of these two sections as well as the applicable provisions of section 316.1934(2) and (3) were intended to be read in pari materia....

...ppellant. There is no indication that the operator deviated from the approved method or that the utilized method would not provide accurate results. Thus, appellee's blood test results are admissible under sections 316.1932(1)(f), 316.1933(2)(b) and 316.1934(2) and (3) of the Florida Statutes (1989) and rules 10D-42.028 through 10D-42.030 of the Florida Administrative Code....

...that the proficiency testing be "regular," and in light of the evidence in this record that the proficiency testing is done at least every three months by HRS, there is no basis to conclude such a method of testing is inherently defective. Moreover, section 316.1934 expressly provides that insubstantial differences between approved techniques and actual testing procedures in any given case do not invalidate the test results for purposes of the presumption....

...Based on this testimony, the trial judge denied the motion to suppress and permitted the blood-alcohol test results to be admitted as evidence. Under Florida's Implied Consent Law, certain evidence of DUBAL creates a presumption that the driver was impaired. § 316.1934(2)(c), Fla....

...Give as applicable. § 316.003(75), Fla. Stat. Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks. § 316.1934(1), Fla....

...893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. When appropriate, give one or of the following instructions on the presumptions of impairment established by Give if appropriate. § 316.1934(2)(a), and (2)(b), and (2)(c), Fla....

...demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...Give as applicable. § 316.003(75), Fla. Stat. Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks. § 316.1934(1), Fla....

...893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. When appropriate, give one or of the following instructions on the presumptions of impairment established by Give if appropriate. § 316.1934(2)(a), and (2)(b), and (2)(c), Fla....

...demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...Give as applicable. § 316.003(75), Fla. Stat. Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks. § 316.1934(1), Fla....

...893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. When appropriate, give one or of the following instructions on the presumptions of impairment established by Give if appropriate. § 316.1934(2)(a), and (2)(b), and (2)(c), Fla....

...demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...Give as applicable. § 316.003(75), Fla. Stat. Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks. § 316.1934(1), Fla....

...substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. When appropriate, give one or of the following instructions on the presumptions of impairment established by Give if appropriate. § 316.1934(2)(a), and (2)(b), and (2)(c), Fla....

...demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...3(2)(b), Fla. Stat. (2002) ("A chemical analysis of the person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approved by the Department of Law Enforcement....") (emphasis added); § 316.1934(3), Fla....

...239, 157 P.2d 356, 360 (1945)). The 2003 legislation supports Pierre. REVERSED AND REMANDED. STONE and HAZOURI, JJ., concur. NOTES [1] The statute, as noted below, has been substantially amended in response to Bodden, in this past legislative session. [2] See § 316.1934(2).

...The second complaint on appeal, that the state was not entitled to the statutory presumption of impairment because of the inadequacy of Rule 11D-8.012, Florida Administrative Code, is without merit. The jury was not instructed regarding the presumption that may attach pursuant to section 316.1934(2)(c), Florida Statutes (1999), thus there was no error....

...Further, on "second tier" review, such error must violate a clearly established principle of law which results in a miscarriage of justice. Id.; Stilson v. Allstate Ins. Co., 692 So.2d 979, 980 (Fla. 2d DCA 1997). We conclude that the circuit court applied the incorrect law and grant the Department's petition. Section 316.1934(5), Florida Statutes (2006), provides as follows: An affidavit containing the results of any test of a person's blood or breath to determine its alcohol content, as authorized by s....

...Instead, the driver has the burden of establishing that the intoxilyzer machine was not in compliance. Id. However, once a driver submits proof that an intoxilyzer machine was not in substantial compliance with the appropriate regulations, DHSMV must prove that there was substantial compliance. However, section 316.1934(5) requires that the affidavit meet the requirements of subsections (a) through (e) before the affidavit is admissible, and if those requirements are met, the burden then shifts to the driver. See Alliston, 813 So.2d at 144 (noting that section 316.1934(5) provides that the affidavit is admissible without further authentication and is presumptive proof of the results obtained if the affidavit discloses certain required information and that the statutory scheme places the initial bur...

...s; however, once the breath test results are admitted into evidence, the record contains competent, substantial evidence of impairment, and the burden shifts to the driver). Therefore, it was the Department's burden to prove that the requirements of section 316.1934(5) were met before the affidavit was admissible in evidence. In the present case, the Department met the requirements of section 316.1934(5) by providing documentation establishing the date of performance of the most recent required maintenance on the intoxilyzer....

...The breath alcohol test affidavit states that the date of the last "Agency Inspection" was December 13, 2006. [1] The agency inspection report submitted at the hearing, "FDLE/ATP Form 40," also reflects the inspection date of December 13, 2006. While section 316.1934(5) refers to "required maintenance" and the above two forms refer to "agency inspection," we note that the term "agency inspection" is defined by the Florida Administrative Code as "the periodic testing of the calibration and operati...

...As noted above, "FDLE/ATP Form 40" was submitted at the revocation hearing, evidencing that the required monthly inspection/maintenance was performed on the Intoxilyzer 8000. Therefore, the circuit court applied the incorrect law in determining that the Department did not meet the requirements of section 316.1934(5)....

...August 2005 for the Intoxilyzer 8000. Fla. Admin. Code R. 11D-8.004 (emphasis added). We would note that the Fourth District has recently held that either the agency inspection report or the department inspection report can satisfy the requirements of section 316.1934(5). State v. Buttolph, 969 So.2d 1209, 1211 (Fla. 4th DCA 2007) ("Returning to section 316.1934(5), Florida Statutes, which specifies the `most recent required maintenance,' we conclude that the most recent could be either the monthly, or the annual inspection, if the annual was the most recent.")....

...Give as applicable. § 316.003(95), Fla. Stat. “Vehicle” is every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks. § 316.1934(1), Fla....

...as pregnant or that the defendant intended to cause the death of the unborn child. -7-  When appropriate, give one or more of the following instructions on the presumptions of impairment established by §§ 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....

...that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...des to the Department a breath alcohol analysis report, a breath test affidavit, and an agency inspection report in order to report the results of the breath test and thus support the license suspension for an unlawful breath-alcohol level. Notably, section 316.1934(5) provides that an affidavit containing breath test results "is admissible in evidence under the *638 exception to the hearsay rule in s....

...90.803(8)" without further authentication "and is presumptive proof of the results" if the affidavit discloses five specific items, including "the date of performance of the most recent required maintenance" if the test was administered by means of a breath testing instrument. § 316.1934(5)(e)....

the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)(a)

...Paramedics who had responded to the accident, actually did the blood draw at the accident scene. Johnson's blood alcohol level was .09. Defense counsel moved to suppress the results of the blood test on the ground that there was no probable cause justifying the officer's request. Section 316.1934(2) provides that the results of blood tests performed pursuant to section 316.1933 are admissible in any civil or criminal trial and a test result of .08 or greater, is prima facie evidence that the person was under the influence of alcoholic beverages....

...rivilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 are not confidential and shall be admissible into evidence in accordance with the provisions of s. 316.1934(2)....

...This case is legally similar to New York Life Ins. Co. v. Coll, 568 So.2d 1306 (Fla. 3d DCA 1990). In Coll , the district court held the trial court erred in failing to take into consideration the statutory inference of one’s normal faculties being impaired when the blood alcohol is 0.10. See § 316.1934(2)(c), Fla.Stat....

PER CURIAM. The state appeals a county court order dismissing an information against appellee and declaring section 316.1934, Florida Statutes (1985), unconstitutional....

...This court has jurisdiction pursuant to section 26.012, Florida Statutes (1985). Appellee was charged with driving under the influence of alcohol pursuant to section 316.193(1), Florida Statutes (1985). He thereafter filed a motion to declare a portion of another statute, section 316.1934, invalid. He asserted that because section 316.1934(2)(c) provides that a blood alcohol level of 0.10 or more is prima facie evidence of impairment, it unconstitutionally shifts the burden of proof of one of the essential elements of section 316.193(l)(a) (the element of impairment) to the defendant. The county court granted the motion and dismissed the information. The court found that the state intended to offer ap-pellee’s blood alcohol reading at trial as proof of impairment, pursuant to section 316.1934. To do so, the court held, would create an unconstitutional mandatory re-buttable presumption. On appeal, the state contends that appel-lee prematurely raised the constitutionality of section 316.1934 in a pretrial motion, because prior to actual application of the alleged burden-shifting statute at trial, there can be no constitutional violation....

...d drugs, and that her vehicle contained alcohol bottles, hydrocodone containers, and other items indicative of impaired driving. The victim’s blood-alcohol content was 0.17, twice the legal limit for which a presumption of impairment applies under section 316.1934(2)(c), Florida Statutes (2018)....

...However, the witness 1 “If there was at that time a blood-alcohol level or breath- alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.” § 316.1934(2)(c), Fla....

...st Affidavit containing the results of Berne’s breath test administered on the Intoxilyzer 8000, an Agency Inspection Report, and a Department Inspection Report. These documents contained all of the statutorily required information necessary under section 316.1934(5), Florida Statutes (2005), to admit the affidavit con *783 taining the breath test results into evidence and to establish that the Intoxilyzer 8000 used for Berne’s test was properly inspected and maintained, that it performed appropriately, and that it produced accurate and reliable test results....

...in substantial compliance with the applicable statutes and rules.”). Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath....” § 816.1934(5), Fla. Stat. (2005); see also § 316.1934(2)(c), Fla....

NESBITT, Judge. An insurer argues that the trial court erred in failing to apply section 316.1934, Florida Statutes (1989), which creates a permissive inference of a driver’s impairment, and thus erroneously awarded double indemnity benefits and attorney’s fees to the insured’s beneficiary....

...relationship between the insured’s death and the intoxicants she *1308 consumed in order for the exclusionary provision of the policy to be effective. In considering the evidence before him, the trial judge grappled with the effect to be given to section 316.1934(2)(c)....

...person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired. The insurer argued that the insured’s blood alcohol content of over .10% raised the presumption of impairment. The beneficiary argued that section 316.1934(2)(c) could not be applied because there was neither probable cause for taking the blood test, see § 316.1933(1), Fla.Stat....

...s found in the insured's bloodstream. Finally, the trial judge commented that his decision not to apply the statutory inference was crucial to his final determination in the beneficiary’s favor. We disagree with the trial court’s conclusion that section 316.1934(2)(c) does not apply to the instant case. The autopsy, which was mandated by section 406.11, Florida Statutes (1989), was performed for a medical purpose and therefore the inference of section 316.1934(2)(c) was applicable....

...If there is substantial compliance with HRS’ regulations, and a result of .08 or more is obtained, that fact shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. § 316.1934(2)(c), Fla....

...Currently, each breath testing machine is checked using “alcohol reference solutions” (ARS) produced in different levels of alcohol concentration such as .05, .08, or .20 to mimic acceptable or unacceptable levels of alcohol as set forth in sections 316.193 through 316.1934, Florida Statutes (1999)....

...ATION OF CHAPTER 120? There are a plethora of cases dealing with blood, breath, and urine testing for alcohol content and the necessity for FDLE to adopt rules. The overwhelming majority of these cases challenge the presumption of intoxication under section 316.1934, Florida Statutes, because the agency failed to provide for sufficient procedures to insure the reliability of breath, urine, or blood tests as required under section 316.1932....

...We reject this argument and distinguish Miles legally and factually. First, Miles II stands for the proposition that the State is not entitled to the presumption of impairment where there is violation of the implied consent law found in sections 816.1932-316.1934, Florida Statutes....

...mulgate rules for testing and inspecting the breath machines. . Even if Miles II did apply, the supreme court reaffirmed the ruling of Robertson v. State, 604 So.2d 783 (Fla.1992), that when there is no assurance of compliance with sections 316.1932-316.1934, the State must revert back to the common law approach for admitting the blood alcohol test results....

...in June 1994, a date prior to the February 8,1995 use of said control. By enacting Florida’s implied consent statute, the legislature provided a statutory basis for the admission of blood alcohol test results in criminal trials. 2 In this regard, section 316.1934(2) of the Florida Statutes (1993) provides that the results of any blood alcohol test administered in accordance with the requirements of the implied consent statute shall be admissible into evidence....

...pproved by the Department of Law Enforcement.” The *104 statute also provides that any “insubstantial differences between the approved techniques and actual testing procedures” in any individual case do not render the test results invalid. See § 316.1934, Fla.Stat....

impairment instruction set forth in Florida Statutes § 316.1934(2) (doc. 1 at 4-5; doe. 2 at 7-10). Petitioner

the presumptions of impairment established by F.S. 316.1934. *1229ACCESSORY AFTER THE FACT F.S. 777.03 Before

...The machine used in this case was an intoxilyzer 5000 series instrument. The required Form 16 provides all results and all other requested information shall be recorded on FDLE/ATP Form 24. Form 24, in turn, contains a signature line and a name line. Section 316.1934(5), Florida , Statutes, provides: (5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol content, as authorized by s....

...da Constitution) with Smith v. Maryland, 442 U.S. 735 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 *139 (1979) (pen registers; Fourth Amendment). Indeed, it is the established law of this state that Florida’s implied consent statutes [§§ 316.1932, 316.1933, 316.1934, Fla....

...Accordingly, the limiting language in article I, section 12 does not prohibit the legislature from passing statutes which give Florida citizens greater protections than the Fourth Amendment. We therefore approve the decision of the trial court. FARMER and KLEIN, JJ., concur. . "F.S. 316.1932, F.S. 316.1933, F.S. 316.1934, (2000).”

...The trial judge denied Wilson's motion for rehearing, and this appeal followed. We affirm. In his appeal, Wilson argues that like Servis, he is entitled to relief because the jury was improperly instructed regarding the statutory presumptions of impairment pursuant to section 316.1934(2), Florida Statutes (1997)....

...Hartford, relied on Frame’s autopsy report, which listed his blood alcohol level as 0.149 , gm/dL. (H2284, HÍ928). Under Florida law, a blood alcohol level of 0.08 or higher yields a legal presumption of “under the influence.” See Fla. Stat. § 316.1934 (2)(c)....

The plain language of the statute is clear. Section 316.1934(4), Florida Statutes (Supp.1984), provides

the presumptions of impairment set forth in section 316.1934(2), Florida Statutes (1997). We have also

...on 28.1(a) for publication and use as requested by the Committee in report number 2009-03. As submitted by the Committee to the Court in report number 2008-08, proposed instruction 28.1(a) did not include the presumption of impairment established by section 316.1934(2)(c), Florida Statutes (2008)....

...But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. Accordingly, we correct the Committee’s inadvertent exclusion of the presumption of impairment under section 316.1934(2)(c) from its prior submission....

instruction, which tracks the language of section 316.1934(2)(c), Florida Statutes (1985): If you find

the presumptions of impairment established by F.S. 316.1934(2)(a), (2)(b), and (2)(c), as follows: (2)4a)U

...Some two hours later and thirteen miles away in Palm Harbor, Mr. West struck Mr. Hall. Mr. West's blood alcohol level later tested at .188.1 1 A blood alcohol level of .08 or higher is prima facie evidence of impairment. See § 316.1934(2)(c), Fla....

...r appellant. Jacob A. Cohen of Law Offices of Jacob A. Cohen, PLLC, Boca Raton, for appellee. KUNTZ, J. Robin Bender was charged with one count of Driving under the Influence in violation of section 316.193(1), Florida Statutes (2019) and section 316.1934(1), Florida Statutes (2019)....

...“Vehicle” is every device in, upon, or by which any person or property is or may be transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks]. § 316.1934(1), Fla....

...Stat. Driving Under the Influence Manslaughter does not require the State to prove that the defendant knew or should have known that (victim) was pregnant or that the defendant intended to cause the death of the unborn child. Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....

...determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks]. § 316.1934(1), Fla....

...description which contain alcohol. ( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....

...whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks]. § 316.1934(1), Fla....

...- 19 -  ( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....

...hether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway[, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks]. § 316.1934(1), Fla....

...- 22 -  ( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat. ( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat. Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....

...hether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...hich any person or property is, or may be, transported or drawn upon a highway[, except personal delivery - 26 - devices, mobile carriers, and devices used exclusively upon stationary rails or tracks]. § 316.1934(1), Fla....

...Stat. § 316.1933, Fla. Stat. Serious bodily injury means a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla....

...whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla....

...ic stop by Broward Sheriffs Office (BSO) in Pompano Beach on July 28, 2004. Cubic submitted to a breath-alcohol test. His breath-alcohol level was 0.098, which rendered him guilty of driving a motor vehicle with an unlawful breath-alcohol level. See § 316.1934(2)(c), Fla....

in the light of the DUI manslaughter statute, § 316.1934(2)(c), have questioned the continued vitality

...da Rule of Appellate Procedure 9.160(b): DOES THE STANDARD DUI JURY INSTRUCTION, WHICH INCLUDES BOTH THE IMPAIRMENT THEORY AND THE UNLAWFUL BLOOD ALCOHOL THEORY, HAVE THE EFFECT OF GIVING AN INSTRUCTION ON THE STATUTORY PRESUMPTIONS OF IMPAIRMENT IN SECTION 316.1934(2) 1 , FLORIDA STATUTES (2001), SUCH THAT IT IS ERROR TO GIVE THE STANDARD DUI JURY INSTRUCTION WHERE BLOOD ALCOHOL RESULTS WERE ADMITTED VIA THE TRADITIONAL PREDICATE? We have accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160(d)....

...Seltzer went to the hospital and made contact with Schreiber. He claimed she *346 still smelled of alcohol as they spoke. Seltzer asked her if he could take a sample of her blood; however, he did not read her her rights under the Implied Consent Law, §§ 316.1932, 316.1933, 316.1934, Fla....

...14 (emphasis supplied). The court further noted there is some redundancy in the statutory DUI scheme, since impairment is presumed if *347 the defendant’s BAC is [0.08] or higher. See § 316.1984(2), Fla. Stat. However, the presumption of impairment created by s. 316.1934(2) is a moot concern if the State proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful BAC, ie., 0.08 or higher. Id. Adding further confusion to this redundancy issue, in Miles II, our Supreme Court held the statutory presumption provided for in s. 316.1934(2) was invalid, ie., the State is not legally entitled to the presumptions of impairment associated with the Implied Consent Law....

...o his request was ineffectual, the lower court acted correctly in suppressing the results of those blood draws. AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with the foregoing opinion. GUNTHER and GROSS, JJ., concur. . Section 316.1934(2), Florida Statutes (2001), in pertinent part, provides: At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a...

...nalysis are inadequate to ensure rehable results. See Fla. Adm.Code Rules 11D-8.011-.014 (1997). In granting Sandt’s motion, the trial court ruled that the State would not be allowed to rely upon the statutory presumption of impairment provided by section 316.1934, Florida Statutes (1997), but could admit Sandt’s test results at trial upon establishing the traditional scientific predicate described in State v....

...nking, and witnesses on the scene of the accident testified that they had not seen or found evidence of alcohol impairment in the accident. Without objection, the trial court instructed the jury to make certain presumptions of impairment pursuant to section 316.1934, Florida Statutes (1997), based on the blood alcohol test results, including the following: If you find from the evidence that the defendant had a blood alcohol level of .08 percent [sic] or more, that evi *45 dence would be sufficie...

...The jury found appellant guilty on both counts. The trial court entered judgment adjudicating appellant guilty on both counts. This appeal ensued. [[Image here]] Appellant argues that the trial court reversibly erred in instructing the jury to make the statutory presumptions of impairment, see section 316.1934, Florida Statutes (1997), because rule 11D-8.012, Florida Administrative Code, the administrative rule implementing the implied consent statutes, was declared invalid under State v....

the presumption of intoxication set forth in section 316.1934(2)(c), F.S. (1985), as follows: If you find

...t test results unreliable. We cannot agree with Schofield that the circuit court departed from the essential requirements of law in this case and that this results in a miscarriage of justice. We first turn to the affidavit received into evidence. 1 Section 316.1934(5), *448 Florida Statutes (2000), provides that an affidavit is “admissible without further authentication.” The affidavit further constitutes “presumptive proof of the results of an authorized test.” Id. If the affidavit indicates that the breath alcohol test level is 0.08 or higher, the “presumptive proof of the results” gives rise to the rebuttable presumption of impairment as set forth in section 316.1934(2)....

...When employed in a statute, words of common usage should be interpreted in a plain and ordinary sense. Id. First, the affidavit is proper both in form and content. Schofield does not contest that the affidavit contains all of the requisite information required in section 316.1934, Florida Statutes....

...Nonetheless, evidence of the use of dentures during a breath alcohol test go to the weight accorded the test result, not the admissibility of the test result, the latter of which lies fully within the discretion of the *449 court. See State v. Allen, 74 Or.App. 275 , 702 P.2d 1118 (1985). Petition denied. . Section 316.1934(5), Florida Statutes (2000), allows the admission of breath test results by affidavit....

...Additionally, this case is controlled by Dodge v. State, 805 So.2d 990 (Fla. 4th DCA 2001). In Dodge , this court held that where a defendant’s blood test results were admitted in compliance with the three-prong common law test, the “presumption of impairment created by [section 316.1934(2) Florida Statutes] is a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level.” Id....

1992): In a case involving DUI by impairment, section 316.1934, Fla. Stat. (1989) provides that 0.10 percent

...1st DCA 1988). - 13 -  The Implied Consent Law, Bender,5 and Miles To address drunk driving in Florida, the Legislature enacted the implied consent law. See §§ 316.1932, 316.1933, 316.1934, Fla....

...One function of this statutory scheme is to imply the consent for a blood alcohol test of any driver arrested under suspicion of driving under the influence. Id. § 316.1932(1)(a)1.a. If properly administered, the test results give rise to criminal presumptions of impairment. See id. § 316.1934(2)(c) (making a BAC of 0.08 or higher prima facie evidence of impairment)....

...Thus, the tests must be scientifically reliable and accurate. See Bender, 382 So. 2d at 699. However, the presumptions are rebuttable and a defendant may introduce “competent evidence bearing upon the question of whether [they were] under the influence of alcoholic beverages.” § 316.1934(2), Fla....

...This evidence is in stark contrast to Miles, where the potential effects of heat and bacteria were irreversible after the fact and there was no way to account for the impact. See Miles, 775 So. 2d at 954- 55, 954 n.5. Finally, defendants are free to challenge the accuracy of their result in any given case. § 316.1934(2), Fla....

...& Motor Veh. v. Berne, 49 So.3d 779, 782 (Fla. 5th DCA 2010); see also § 316.1932(l)(b)(2), Fla. Stat. (2011). Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath.” § 316.1934(5), Fla. Stat.; see also § 316.1934(2)(c) (providing that a test result of 0.08 or higher is “prima facie evidence” that the person was impaired)....

faculties presumably would have been impaired. See Section 316.1934(2)(c), Florida Statutes (1987). Just seconds

...vidence that Guth solutions used in the monthly inspections were FDLE-approved.... ” 2. “[T]he breath test results affidavits do not reflect ‘the date of the performance of the most recent required maintenance’ as required by Florida Statute § 316.1934(5).” 3....

...Roper appeals from a conviction for driving while intoxicated, Section 316.1931, Florida Statutes (1983). He contends the trial court committed reversible error by refusing his request that the jury be instructed that the chemical test presumption contained in Section 316.1934, Florida Statutes (1983), did not mean, without more, he was intoxicated....

...ed to be under the influence to the extent his normal faculties are impaired, i.e., he is presumed to be intoxicated. Relying on Kujawa v. State, we find no error in the trial court’s instructions to the jury, which merely tracked the language of' Section 316.1934....

extent that his normal faculties were impaired. § 316.1934(2)(c), Fla.Stat. . We note that, unlike breath

statutory presumptions of impairment found in section 316.1934(2), Florida Statutes (1993). See Townsend

breath test results were .102% and .095%. Under section 316.1934(2)(c), Florida Statutes (1995), a test result

...Section 316.193(1), Florida Statutes (2022), makes it unlawful for a person to drive a vehicle while under the influence of alcoholic beverages or controlled substances “when affected to the extent that the person’s normal faculties are impaired . . . .” Section 316.1934(1), Florida Statutes (2022), provides it is unlawful for a person to drive a motor vehicle while under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person’s...

the State could not introduce, pursuant to section 316.1934(5), Florida Statutes (2023), evidence of breath

...Cline, Senior Assistant Attorney General, Tampa, for Petitioners. Robert N. Harrison of Robert N. Harrison, P.A., Venice, for Respondents. BLACK, Judge. The State seeks certiorari review of the trial court's order determining that the State could not introduce, pursuant to section 316.1934(5), Florida Statutes (2023), evidence of breath alcohol tests obtained during driving under the influence investigations in three separate cases.1 The same Intoxilyzer 8000 was used in each of the three investigations, and a single order was rendered by the trial court precluding the State from relying on the test results pursuant to section 316.1934(5) in all three cases....

...pair facility and that, therefore, the breath tests were not conducted in substantial compliance with chapter 11D-8 of the Florida Administrative Code, such that the tests were not "approved" for purposes of section 316.1932, made applicable through section 316.1934(5). Evidence at the suppression hearing included an email from a sheriff's deputy to the Florida Department of Law Enforcement advising that the breath tube of the intoxilyzer in question was "leaking and broken and in need of r...

...would be available on an acquittal, the State may properly invoke certiorari review." Id. Here, the State argues that the trial court's interpretation of the applicable law deprived it of "the statutory presumption of proof of breath tests results under section 316.1934" such that its ability to prosecute these cases has been substantially impaired. Because the court's ruling prevents the State from introducing the Intoxilyzer 8000 results under section 316.1934 and therefore precludes any presumptions afforded under the statute, the State has satisfied the jurisdictional prongs for certiorari review....

...Cline, Senior Assistant Attorney General, Tampa, for Petitioners. Robert N. Harrison of Robert N. Harrison, P.A., Venice, for Respondents. BLACK, Judge. The State seeks certiorari review of the trial court's order determining that the State could not introduce, pursuant to section 316.1934(5), Florida Statutes (2023), evidence of breath alcohol tests obtained during driving under the influence investigations in three separate cases.1 The same Intoxilyzer 8000 was used in each of the three investigations, and a single order was rendered by the trial court precluding the State from relying on the test results pursuant to section 316.1934(5) in all three cases....

...pair facility and that, therefore, the breath tests were not conducted in substantial compliance with chapter 11D-8 of the Florida Administrative Code, such that the tests were not "approved" for purposes of section 316.1932, made applicable through section 316.1934(5). Evidence at the suppression hearing included an email from a sheriff's deputy to the Florida Department of Law Enforcement advising that the breath tube of the intoxilyzer in question was "leaking and broken and in need of r...

...would be available on an acquittal, the State may properly invoke certiorari review." Id. Here, the State argues that the trial court's interpretation of the applicable law deprived it of "the statutory presumption of proof of breath tests results under section 316.1934" such that its ability to prosecute these cases has been substantially impaired. Because the court's ruling prevents the State from introducing the Intoxilyzer 8000 results under section 316.1934 and therefore precludes any presumptions afforded under the statute, the State has satisfied the jurisdictional prongs for certiorari review....

...We conclude that section 322.2615 and rule 15A-6.013 permit consideration of reports, other than Form 15, relating to the results of blood-alcohol tests that are not in affidavit form at a formal administrative review hearing. We contrast these provisions with section 316.1934(5), which requires an “affidavit containing the results of any test of a person’s blood or breath” for admissibility at trial of a civil or criminal proceeding arising out of acts allegedly committed by a person while driving under the influence of alcohol....

...We cannot say that the circuit court failed to apply the correct law when it made this due process analysis. However, we also discern another reason to uphold the circuit court’s opinion which was not articulated. We consider this issue to be one of statutory interpretation. Section 316.1934(2), Florida Statutes (1993), provides: Upon the trial of any civil or criminal action_the results of any test administered in accordance with s....

...1 Therefore, under statutory construction principles, the pre-release test is not admissible in evidence against the person taking it. Petition for certiorari is denied. POLEN, J., concurs. STEVENSON, J., concurs specially with opinion. . Section 316.193(9) became law in 1991. Ch. 91-255, Laws of Fla. (1991). While section 316.1934 was enacted earlier, it was modified in the same law, and several other modifications to both statutes have occurred through the years. The Legislature has not seen fit to include section 316.193(9) in the admissible tests listed in section 316.1934(2).

...Section 316.1933, Florida Statutes (2011), requires a police officer to obtain a driver’s blood when the officer has probable cause to believe an impaired driver has caused death or serious injury to a human being and to use reasonable force if necessary. Finally, section 316.1934, Florida Statutes (2011), sets 4  If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical...

...Section 316.1933, Florida Statutes (2011), requires a police officer to obtain a driver’s blood when the officer has probable cause to believe an impaired driver has caused death or serious injury to a human being and to use reasonable force if necessary. Finally, section 316.1934, Florida Statutes (2011), sets 4  If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical...

demonstrate, by affidavit or otherwise, see section 316.1934(5), Florida Statutes (1991), that an approved