Opinion
No. 4D2022-2646
10-11-2023
Alexander CHIARAVALLE, Appellant, v. STATE of Florida, Appellee.
Charles G. White of Charles G. White, P.A., Miami, for appellant. Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuna, Senior Assistant Attorney General, West Palm Beach, for appellee.
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm Beach County; Ori Silver and Roger B. Colton, Judges; L.T. Case No. 50-2021-CT-019692-AXXX-NB.
Charles G. White of Charles G. White, P.A., Miami, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuna, Senior Assistant Attorney General, West Palm Beach, for appellee.
Levine, J.
Appellant argues that the trial court erred in not suppressing the results of a breath test administered during a DUI investigation. Specifically, appellant claims the officers failed to comply with the administrative rule that requires observation of appellant for twenty minutes before the breath test is administered. We find the trial court did not err because the officers substantially complied with the applicable administrative rale. As such, we affirm.
Appellant was charged with driving under the influence. Appellant was placed under arrest at approximately 12:42 a.m. after being stopped pursuant to a traffic stop. The observation period ended at 1:05 a.m., and an officer subsequently administered the breath test. Appellant moved to suppress the results of the breath test, claiming the police did not comply with Florida Administrative Code Rule 11D-8.007 which requires observation of appellant for twenty minutes before administering the breath test.
A hearing was held on the motion to suppress. One officer testified that he stopped appellant for driving sixteen miles per hour over the speed limit. The officer began investigating appellant for DUI when the officer noticed appellant’s bloodshot eyes, slow slurred speech, flushed red face, and the odor of an alcoholic beverage on his breath. The officer conducted multiple roadside exercises and then placed appellant under arrest for DUI. The officer placed appellant under arrest at approximately 12:42 a.m. Appellant was then handcuffed and searched. Body camera footage of the incident shows that appellant’s pockets were pulled out to confirm that nothing was inside. Appellant was then placed in the back of the officer’s patrol car.
The officer stated he observed appellant during the observation period. The officer confirmed he was in the "immediate area" and "within earshot" of appellant throughout the entire observation period. The officer did not hear appellant regurgitate, burp, or hiccup. The officer stated it was impossible for appellant to have consumed anything during the observation period, since appellant was handcuffed with his hands behind his back and had nothing on him that he could have consumed. The officer also testified that although he and the other officers nearby did not continuously look at appellant, they were observing appellant for the full twenty minutes. The officer testified that appellant was sitting "regular, just facing forward." The vehicle dash camera, which was facing forward, was continuously recording while appellant was in the vehicle. That dash camera recording, as well as the body camera footage of two officers, was played for the trial court.
The back-up officer testified that appellant was in the patrol car when he arrived. The back-up officer and the other officers were within a few feet of appellant. The back-up officer did not hear appellant regurgitate, burp, or hiccup, nor did he see appellant consume anything. A third officer, an investigator, was called to the scene as a certified breath test operator. The breath test operator also testified that during the observation period, appellant did not regurgitate, nor did he recall appellant burping or hiccupping.
During the hearing, appellant claimed that he was observed for only eleven minutes out of the "twenty-four minute period" for observation.
The trial court found the officers’ testimony to be credible and determined that the officers were in substantial compliance for the twenty-minute observation period as required by the administrative rule. The trial court specifically concluded, based on the dash camera footage, that the officers were within earshot of appellant and could hear what was happening inside the patrol vehicle. The trial court denied the motion to suppress.
Appellant pled no contest and specifically reserved the right to appeal the trial court’s denial of the motion to suppress. This appeal follows.
[1-4] "Review of a motion to suppress in Florida is a mixed question of law and fact. The standard of review on appeal for the trial judge’s application of the law to the factual findings is de novo." Jones v. State, 800 So. 2d 351, 354 (Fla. 4th DCA 2001) (citation omitted). A trial court’s findings of fact are presumed correct and reversed only if not supported by competent substantial evidence. Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007). Further, a trial court’s ruling on a motion to suppress "is clothed with the presumption of correctness, and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court’s ruling." Buonanotte v. State, 356 So. 3d 824, 826 (Fla. 4th DCA 2023) (quoting McNamara v. State, 357 So. 2d 410, 412 (Fla. 1978)).
The relevant administrative code and statutory provision regulating the breath test procedure provides as follows:
(3) The breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test. This provision shall not be construed to
otherwise require an additional twenty (20) minute observation period before the administering of a subsequent sample.
Fla. Admin. Code R. 11D-8.007.
An analysis of a person’s breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement. For this purpose, the department may approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid.
§ 316.1932(1)(b)(2), Fla. Stat. (2021) (emphasis added).
[5] Thus, for the results of the breath test procedure to be admissible, compliance with the applicable administrative regulations need only be in substantial conformity. Dep’t of Highway Safety & Motor Vehicles v. Russell, 793 So. 2d 1073, 1075 (Fla. 5th DCA 2001) ("For the results of a defendant’s breath test to be admissible, the State must establish that the test was made in substantial conformity with the applicable administrative rules and statutes. Insubstantial differences or variations from approved techniques does not render the test nor the test results invalid.") (citation omitted); see also Retain v. State, 922 So. 2d 1046, 1051 (Fla. 4th DCA 2006) (acknowledging generally that substantial compliance is the standard for rules regarding breath tests); State v. Donaldson, 579 So. 2d 728, 729 (Fla. 1991); Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So. 2d 141, 144 (Fla. 2d DCA 2002).
[6] Appellant claims that the officers were not constantly observing him during the observation period. Yet, "continuous face to face observation for twenty minutes is not required to achieve substantial compliance with the approved HRS methods." Kaiser v. State, 609 So. 2d 768, 770 (Fla. 2d DCA 1992). In fact, those officers involved in the administration of the breath test need not "stare fixedly at the defendant for the entire observation period to achieve substantial compliance." Dep’t of Highway Safety & Motor Vehicles v. Farley, 633 So. 2d 69, 71 (Fla. 5th DCA 1994).
[7] Once the trial court determines substantial compliance with the applicable administrative rules, the breath test would be admissible. However, the question of whether the breath test operator was able to make certain that the defendant "did not ingest any substance or regurgitate during the observation period is an issue going to the weight of the evidence presented. As such, this is a question to be determined by the jury, rather than a matter of law to be decided by the court." Kaiser, 609 So, 2d at 769.
[8] Just like the present case, the defendant in Kaiser was in custody for twenty minutes or more, and the breath test operator did not stare fixedly at the defendant. "[W]hether the technician was able to make certain that Kaiser did not regurgitate or ingest anything goes to the weight of the evidence" and is a "recognition that the jury may consider the weight to be given to the test if the defense challenges its reliability." Id. at 770; see also Schofield v. State, 867 So. 2d 446, 448-49 (Fla. 3d DCA 2004) (holding, on a motion to suppress, that evidence of the use of dentures during a breath alcohol test went to the weight accorded to the test, not the admissibility of the test result).
[9] We agree with the court in Kaiser that where the breath test operator substantially complies with the administrative rule, any remaining challenge then goes to its weight, which is an issue for the factfin- der. Since the instant case involved a hearing on a motion to suppress, "the judge has the responsibility of weighing the evidence and determining matters of credibility." Brown v. State, 352 So. 2d 60, 61 (Fla. 4th DCA 1977).
[10] We find that there was substantial competent evidence to support the trial court’s denial of appellant’s motion to suppress. Thus, any allegations of deficiencies argued by appellant would go to the weight of the evidence to be decided by the factfinder, and not to its admissibility. In this case, nothing prevented appellant from arguing against the weight of the evidence had appellant chosen to argue the case to a jury or to the judge as a factfinder. The trial court did not err by denying the motion to suppress and by finding substantial compliance with the administrative code and determining the breath test results were admissible.
In summary, we find that there was the required substantial compliance with rule 11D-8.007, and the trial court did not err in finding the results of the breath test were admissible. We affirm.
Affirmed.
Ciklin and Conner. J.J., concur.