1

Double Click above on the "Download File" to retrieve this document.

05/08/97 !"!# $F F%$&'D"( v. )#&&* +&',-".( .'%"/ 0&

+%1# +$$0 C'!"!'$/ F$&.2 1997.F%.1813 4htt52//www.versuslaw.com6
7#ditor8s note2 9ootnotes 4i9 an:6 trail the o5inion;
71; '/ !-# D'!&'C! C$1&! $F "<<#"% $F !-# !"!# $F F%$&'D"
7=; #C$/D D'!&'C!
7>; !"!# $F F%$&'D"(
73; "55ellant(
v.
75; )#&&* +&',-".( .'%"/ 0&!#C( )$-/ <"1% <$+1D'/0'( and !#&&#/C#
&$%<-(
7?; "55ellees.
77; Case /o. 9?@018>7
78; $5inion 9iled .a: 7( 1997.
79; "55eal 9rom the Count: Court 9or arasota Count:A
710; <reston DeBilbiss( )r.( Count: )udCe.
711; "%!#/+#&/D( "ctinC Chie9 )udCe.
71=; !he state a55eals a non@9inal order CrantinC a motion in limine
in 9our consolidated count: court D1' 5rosecutions. !he order su55resses
breath alcohol evidence 5rovided b: an 'ntoDil:Eer 5000 breath test
instrument and e99ectivel: reFuires the dismissal o9 all charCes
alleCinC a violation o9 section >1?.19>4164b6( Florida tatutes 419956.
!he count: court has certi9ied several Fuestions that reFuire us to
inter5ret the 5hrase( "breath alcohol level o9 0.08 5ercent or hiCher"
in section >1?.19>4164b6. G9n1 He reverse the su55ression orders.
"lthouCh it ma: initiall: seem counterintuitive because "5ercent" has a
common de9inition 9or mathematical 5ur5oses( in this conteDt it means
"Crams 5er =10 liters o9 breath." 'n reachinC our decision( we have
considered not onl: the count: court decision in this case but also
several other count: court decisions which the 5arties 5rovided as
5ersuasive authorit:. !hese decisions reach con9lictinC results. !his
court has been 5ersuaded b: the eDcellent o5inion o9 )udCe Hilliam ".
Coo5er( )r.( in tate v. Hol9rom( /o. 93@3@=808@!! 4Fla. +a: Count: Ct.
19936. " co5: o9 the relevant 5ortions o9 that o5inion is attached as
"55endiD ".
71>; '. !-# +"'C F"C!1"% "%%#,"!'$/ '/ !-# F$1& C"#
713; "ll 9our cases are 5endinC in arasota Count: Court on
misdemeanor D1' charCes. .r. )err: +riCham was arrested on Frida:( )ul:
=1( 1995( at 5235 5.m.( 9or drivinC under the in9luence 4"D1'"6. -is
'ntoDil:Eer 5000 tests re5orted .==7 and .==5 Crams o9 alcohol in =10
liters o9 breath. 'n addition to the breath test evidence( the 5robable
cause a99idavit reveals that the arrestinC o99icer observed erratic
drivinC and other common indicators o9 intoDication.
715; .r. .ilan 0rstec was arrested on aturda:( "uCust 1=( 1995( at 1
a.m. -e was sto55ed because he was alleCedl: drivinC 7? m5h in a 55 m5h
Eone. Hhen sto55ed( he admitted that he had consumed 9ive beers. !he
standard sheri998s D1' re5ort states that his breath test results were
.098I and .097I. G9n=.r. )ohn <obudinski was arrested on Frida:( )ul:
=9( 1993( at 10 5.m. -e was observed drivinC erraticall: b: the
arrestinC o99icer and 9ailed a 9ield sobriet: test. .r. <obudinski8s
'ntoDil:Eer 5000 breath test results were .=>8( .=13( and .=01.
71?; Finall:( .r. !errance &ol5h was arrested on !hursda:( $ctober
19( 1995( at 112>0 5.m. -e was sto55ed because he was alleCedl: drivinC
?0 m5h in a >5 m5h Eone and his car had onl: one o5erable headliCht. !he
o99icer8s 5robable cause a99idavit reveals that .r. &ol5h admitted that
he had been drinkinC beer and asked the o99icer to Cive him "a break."
-is three 'ntoDil:Eer 5000 results were .13>I( .1?8I( and .170I.
717; ''. !-# D#F#/D"/!8 "+&#"!- "%C$-$%" !-#$&*
718; !he D1' statute 5roscribes the o5eration o9 a vehicle b: a
driver under two di99erent( but interrelated( circumstances. First( it
is illeCal to o5erate a vehicle "under the in9luence o9 alcoholic
beveraCes . . . when a99ected to the eDtent that the 5erson8s normal
9aculties are im5aired." ection4s6 >1?.19>4164a6( Fla. tat. 419956.
econd( it is illeCal to o5erate a vehicle with "a blood or breath
alcohol level o9 0.08 5ercent or hiCher." ection4s6 >1?.19>4164b6( Fla.
tat. 419956. 'n each de9endant8s case( the record includes evidence the
state could 5resent in a subsection 4a6 "im5airment" case. !he
de9endants attem5t to eDclude evidence that would su55ort a subsection
4b6 "5ercent" case. +ecause no blood tests were obtained 9rom the
de9endants( the state must 5resent 5roo9 o9 a "breath alcohol 5ercent"
to establish a subsection 4b6 violation.<rior to 1991( section
>1?.19>4164b6 onl: 5rohibited the o5eration o9 a vehicle b: a 5erson
with "a blood alcohol level o9 0.10 5ercent or hiCher."
719; ection4s6 >1?.19>4164b6( Fla. tat. 419896. 'n 1991( the
leCislature amended that statute to add the conce5t o9 a "breath alcohol
level o9 0.10 5ercent." Ch. 91@=55( ection4s6 1 at =33>( %aws o9 Fla.
!his conce5t was not chanCed when the 5ermissible level o9 alcohol was
reduced to 0.08I in 199>. Ch. 9>@1=3( ection4s6 1 at ?30( %aws o9 Fla.
"<ercent" is not de9ined in the statute. 't is the absence o9 a
statutor: de9inition that 9uels the de9endants8 arCument.
7=0; "ll de9endants arCue that an 'ntoDil:Eer 5000 breath test
instrument actuall: measures Crams o9 alcohol in a volume o9 breath.
!he: reason that the ordinar: de9inition o9 "5ercent" involves a
mathematical eFuation o9 5arts 5er one hundred. Hebster /ew Horld
ColleCe Dictionar: 100= 4>d ed. 199?6. 1nder this ordinar: de9inition(
the: believe that .==7 Crams o9 alcohol in =10 liters o9 breath eFuates
to a breath alcohol 5ercent o9 0.000108. !he trial court held that the
common and ordinar: meaninC o9 "5ercent" reFuires the Crams 5er liter
measurement to be converted to the de9endants8 much smaller calculation.
7=1; "s eD5lained in this o5inion( the de9endants8 theor: contains a
5atent error in one o9 its assum5tions. .ore im5ortant( it does not take
into consideration some ver: 5ractical in9ormation about the 'ntoDil:Eer
5000 and the other breath test instruments in use in 1991 and 199> when
the statute was amended.
7==; '''. !-# '/!$J'%*K#& 5000( -#/&*8 %"H "/D !-# 12=100 &"!'$
7=>; 'n 1991 and 199> when the leCislature amended the D1' statute(
the 'ntoDil:Eer 5000 was an acce5ted breath testinC machine in Florida.
Fla "dmin. Code &. 10D@3=.0=34>6 4.ar. 199>6. !his com5leD machine is
actuall: a s5ectro5hotometer that measures the absor5tion o9 in9rared
liCht b: a sam5le o9 a Cas. Hhen a s5ectro5hotometer is used as a breath
test instrument( the sam5led Cas is human breath.
7=3; !he absor5tion o9 in9rared liCht b: a sam5le o9 Cas is a99ected
b: the concentration o9 alcohol in the Cas. $nce a sam5le8s level o9
in9rared liCht absor5tion is known( a 5h:sicist can calculate the
concentration o9 alcohol in the sam5le o9 breath usinC a standard
9ormula based on +eers %aw or the +eer@%ambert %aw. !his standard
9ormula determines the concentration in terms o9 the weiCht o9 the
alcohol within the Caseous volume( i.e.( Crams 5er liter. ee <aul
cho5( 's DH' D$"L2 "dmissibilit: o9 +reath !estinC #vidence in the Hake
o9 &ecent ChallenCes to +reath !estinC Devices( =0 w. 1.%. &ev. =37
419916. !he 'ntoDil:Eer 5000 5er9orms this calculation electronicall:
and 5rovides the results on a 5a5er 5rintout.
7=5; !he level o9 alcohol in one8s breath is de5endent u5on the level
o9 alcohol in one8s blood. "lcohol in human breath occurs due to the
eva5oration o9 alcohol in the lunCs 9rom the blood into the breath. !he
Creater the blood alcohol concentration( the hiCher the breath alcohol
concentration. !he relationshi5 between these two concentrations is
derived b: a 9ormula that is an a55lication o9 -enr:8s %aw. -enr:8s %aw
states that( at a constant tem5erature( the concentration o9 a Cas
dissolved in a liFuid is 5ro5ortional to the concentration o9 that same
Cas in air directl: above that liFuid. ee id. at =55@=5?.
7=?; Hhen the level o9 alcohol in breath is com5ared to the level o9
alcohol in blood( there are di99erences amonC 5eo5le. /evertheless( b:
the earl: 1950s( the /ational a9et: Council determined that under
-enr:8s %aw( 9or leCal 5ur5oses( it is reasonable to assume that the
weiCht o9 the alcohol 5resent in one milliliter o9 an: 5erson8s blood is
eFuivalent to the weiCht o9 alcohol 5resent in =100 milliliters o9 that
5erson8s breath at >3 deCrees centiCrade. <eter ,erstenEanC( -ow to
-andle the DH' Case( !he +reathal:Eer 199>( at ?9( 77 4<%' %itiC. M
"dmin. <ractice Course -andbook eries /o. - 3@518=( 199>6.
7=7; Des5ite the continuinC scienti9ic debate over the 5recision o9
the 12=100 ratio( b: 1991 it was widel: acce5ted as an adeFuate eFuation
9or alcohol im5airment statutes and testinC machiner:. "lthouCh the
law:ers who de9end D1' cases have lonC dis5uted the accurac: o9 this
ratio( in 1990 a leadinC Florida de9ense treatise stated2 ""ll breath
instruments are calibrated on the assum5tion that the breath to blood
ratio is =100 to 1." &ichard #. )ensen( <h.D.( D1' De9ense2 !actics and
Case %aw( '@9 4<ro9essional #ducation :stems 19906. "n eDcellent law
review discussion o9 the issue in 1991 states2
7=8; !he universalit: o9 the 12=(100 ratio is readil: a55arent. "ll
breath testinC devices currentl: on the /ational -iChwa: !ra99ic a9et:
"dministration8s list o9 devices con9orminC to its model s5eci9ication
9or breath testinC eFui5ment use this ratio. !hese model s5eci9ications
are used as Cuidelines b: states receivinC 9ederal mone: to 5urchase
breath testinC devices. !he 12=(100 ratio is also recoCniEed b: the
Committee on "lcohol and $ther DruCs o9 the /ational a9et: Council as
an accurate wa: to determine blood alcohol content.
7=9; 'n addition( the 1ni9orm Behicle Code now incor5orates the
12=(100 ratio into its 5er se de9inition o9 intoDication b: de9ininC
alcohol concentration as either Crams o9 alcohol 5er 100 milliliters o9
blood or Crams o9 alcohol 5er =10 liters o9 breath. Fourteen states have
ado5ted the de9inition o9 intoDication.
7>0; ee <aul cho5( 's DH' D$"L2 "dmissibilit: o9 +reath !estinC
#vidence in the Hake o9 &ecent ChallenCes to +reath !estinC Devices( =0
w. 1.%. &ev. =37( =5?@=57 419916.
7>1; !he Florida %eCislature eD5ressl: ado5ted this assum5tion in the
im5lied consent statute in 1991 in the same law that added the "breath
alcohol 5ercentaCe"2 "!he 5ercent o9 alcohol in the blood shall be based
u5on Crams o9 alcohol 5er 100 milliliters o9 blood when anal:EinC blood(
or u5on Crams o9 alcohol 5er =10 liters o9 breath when anal:EinC
breath." ection4s6 >1?.19>=4164b61.( Fla. tat. 4u55. 199=6. Ch.
91@=55( ection4s6 = at =337( %aws o9 Fla. "s will be discussed later(
neither o9 these weiCht to volume ratios is technicall: a mathematical
"5ercent." "<ercent" was used in this statute merel: as a shorthand
descri5tion o9 the 9ormula.
7>=; "s eD5lained in )udCe Coo5er8s o5inion( the 12=100 assum5tion
was also made b: the manu9acturer o9 the 'ntoDil:Eer 5000 in 1991 and
199>. "s a result( the machine8s 5rinted test result is labeled a
"5ercent." +oth the leCislature and an: licensed driver who eDamined
this com5leD machine in that 5eriod would have concluded that it
measured breath alcohol as a "5ercent." !he 9act that this "5ercent" was
actuall: a mathematical ratio based on Crams o9 alcohol 5er =10 liters
o9 breath( the same ratio contained in section >1?.19>=4164b6( Florida
tatutes 4u55. 199=6( would onl: have been obvious to an eD5ert or to
someone who took considerable time to learn about these machines.
7>>; "55arentl: because o9 the continuinC national debate over the
adeFuac: o9 the 12=100 ratio( the manu9acturer o9 the 'ntoDil:Eer 5000
chanCed the 5rintout in .arch 1993. !herea9ter( the test result on newer
machines was labeled "Crams 5er =10 liters" rather than "5ercent." "s
)udCe Coo5er8s o5inion eD5lains( the machine was not modi9ied in an:
9ashion other than to chanCe the 9ormat o9 the test result. $nce the
Florida %eCislature became aware that the readout had been chanCed 9rom
"5ercent" to "Crams 5er =10 liters(" it u5dated our statute. Ch. 9?@>>0(
ection4s6 >( at 1>>9 Fla. ession %aw erv. !he statute no lonCer uses
the word "5ercent(" but continues to rel: u5on either Crams o9 alcohol
5er 100 milliliters o9 blood or 1 Cram o9 alcohol 5er =10 liters o9
breath. ection4s6 >1?.19>416( Fla. tat. 4u55. 199?6.
7>3; 'B. !-# D#F#/D"/!8 #&&$/#$1 C"%C1%"!'$/ &#1%! '/ "/ "+1&D
'/!#&<&#!"!'$/ $F !-# !"!1!#
7>5; 'n the trial court( the de9endants avoided a technical
eD5lanation o9 the 'ntoDil:Eer 5000 and the 12=100 ratio. !he: did not
5resent testimon: 9rom a 5h:sicist( a toDicoloCist( or a doctor to
eD5lain this machiner:. 'nstead( the: called a hiCh school math
instructor( who 5er9ormed some basic mathematical calculations in each
o9 these cases usinC certain assum5tions 5rovided b: the law:ers. -e was
asked to assume( 9or eDam5le( that .==7 Crams o9 alcohol in =10 liters
eFual .==7 milliliters o9 alcohol in =10(000 milliliters o9 breath.
+ased on this assum5tion( a blood alcohol 5ercent o9 .==7 was eFuivalent
to a breath alcohol 5ercent o9 .000108. !his is the "common and
ordinar:" inter5retation ado5ted b: the count: court.!here are two basic
5roblems with this inter5retation. First( a mathematical 5ercentaCe( as
em5lo:ed b: a hiCh school math instructor( is a 9ormula that com5ares
two Fuantities based on a common trait or unit o9 measurement. For
eDam5le( one can measure the 5ercentaCe o9 rotten a55les in a boD o9
a55les based on2 416 the number o9 rotten a55les com5ared to the total
number o9 a55lesA 4=6 the weiCht o9 the rotten a55les to the weiCht o9
all a55lesA or 4>6 the volume o9 the rotten a55les to the overall
volume. $ne can com5are the weiCht o9 the rotten a55les to the overall
volume o9 a55les( but this weiCht@to@volume ratio is not a mathematical
5ercentaCe because it miDes units. %ikewise( one can also obtain a ratio
com5arinC 5 a55les in a boD o9 50 oranCes( but the ratio cannot be
eD5ressed as a 5ercent o9 either a55les or oranCes. 'n this case( b:
assuminC that the weiCht o9 the alcohol could be eFuated to its volume(
the law:ers asked the math instructor to com5are the volume o9 the
alcohol reduced to its liFuid state to the volume o9 the remaininC
breath in its Caseous state. G9n> !he law:ers8 assum5tion resulted in a
liFuid@to@Cas com5arison that is essentiall: an a55les@to@oranCes
"5ercent." 't is incorrect as a matter o9 hiCh school 5h:sics or
chemistr: without reCard to hiCh school mathematics.
7>?; econd( the 9lawed assum5tion dramaticall: shi9ts the results.
"ssuminC that human breath would not be saturated with alcohol well
be9ore a 0.08I as calculated under the de9endants8 theor:( it would
clearl: take a lethal dose o9 alcohol( a55arentl: hundreds o9 times
hiCher than these de9endants8 levels( to reach a breath alcohol level
that violated the statute accordinC to the de9endants. ,iven that the
leCislature unFuestionabl: intended to eFuate the breath alcohol level
with a relativel: low 0.08I blood alcohol level( there can be no dis5ute
that the leCislature did not intend the de9endants8 "common and
ordinar:" de9inition. !he de9inition acce5ted b: the trial court leads
to an absurd inter5retation o9 the statute. #ven i9 this were a 5ro5er
literal inter5retation o9 the statute( there is no reFuirement that such
a literal inter5retation o9 the statute be utiliEed when that
inter5retation reaches an absurd result. <arker v. tate( 30? o. =d
1089 4Fla. 19816A tate v. Hebb( >98 o. =d 8=0 4Fla. 19816.
7>7; B. '/ C$/!#J!( "<#&C#/!" .#"/ ,&". <#& =10 %'!#& $F +&#"!-
7>8; '9 a statute is so well written that it clearl: and
unambiCuousl: conve:s a de9inite meaninC( there is no need to resort to
statutor: inter5retation and construction. !he Nudiciar: must conclude
that the leCislature intended the result the statute conve:s with its
5lain and obvious meaninC. -oll: v. "uld( 350 o. =d =17 4Fla. 19836.
!his is not a rule o9 CrammarA it re9lects the constitutional obliCation
o9 the Nudiciar: to res5ect the se5arate 5owers o9 the leCislature. !hat
same res5ect( however( reFuires the Nudiciar: to 9ul9ill the leCislative
5ur5ose o9 an ambiCuous statute when that 5ur5ose is adeFuatel:
demonstrated in the teDt o9 the statute and in those reliable sources
eDtrinsic to the teDt traditionall: used to determine the leCislature8s
5ur5ose. ee tate v. 'acovone( ??0 o. =d 1>71 4Fla. 19956.
7>9; !here can be no dis5ute that the leCislature8s unusual
de9inition o9 "5ercent" is not a common dictionar: de9inition. !his is
5erha5s an a55ro5riate case in which to remind ourselves o9 %earned
-and8s 9amous observation that a "mature and develo5ed Nuris5rudence"
does not "make a 9ortress out o9 the dictionar:." Cabell v. .arkham( 138
F.=d 7>7( 7>9 4=d Cir. 19356. 'n determininC the "5lain and obvious"
meaninC o9 an overall statute( it is not alwa:s su99icient to eDamine
onl: the 9irst de9inition o9 the individual statutor: words in the
dictionar:.
730; +eCinninC with the immediate teDt o9 section >1?.19>4164b6( two
thinCs are clear. First( the leCislature has not 5rovided the units o9
com5arison 9or either the blood or the breath alcohol "5ercent." !he
9ormula to determine this "5ercent" must be derived 9rom some other
source. econd( the leCislature has decided that the 9ormula used to
measure blood alcohol and breath alcohol reach eFuivalent 5ercentaCes.
731; +ecause we must look outside the teDt o9 the statute to de9ine
the 9ormula 9or "5ercent(" it is reasonable to eDamine the de9inition in
section >1?.19>=4164b6( the im5lied consent law( which is a statute in
5ari materia. ee -arrinCton M Co. v. !am5a <ort "uth.( >58 o. =d 1?8
4Fla. 19786. !he 9act that this de9inition was created in the same
enactment as the oriCinal breath alcohol 5ercent clause assures us that
the two 5rovisions were reviewed toCether and voted u5on at the same
time in the leCislature. 't is a de9inition that does eFuate blood
alcohol and breath alcohol 5ercentaCes. 1nder these circumstances( use
o9 the related de9inition a55ears 9ar more reasonable than reliance u5on
an unworkable mathematical de9inition. !his is 5articularl: true where
the 199? amendment to section >1?.19>416 did not chanCe the
leCislature8s intended 5olic:( but clari9ied its decision to rel: on a
breath alcohol test measured in Crams 5er =10 liters o9 breath. ee
<alma Del .ar Condominium "ss8n v. Commercial %aundries( 58? o. =d >15
4Fla. 19916 4court ma: consider clari9:inC amendment when inter5retinC
oriCinal enactment6A 've: v. ChicaCo 'ns. Co.( 310 o. =d 393 4Fla.
198=6 4same6.
73=; 't is 9air to test our reliance u5on this related statutor:
de9inition b: eDamininC the historical conteDt in which the statute was
enacted. From reviewinC the leCal treatises at the time o9 the enactment
and the related technical in9ormation on breath test instruments( it is
clear that both law:ers and manu9acturers o9 breath test instruments
re9erred to the test result as a "5ercent(" even thouCh it technicall:
was a measurement o9 Crams 5er =10 liters. !his de9inition was em5lo:ed
on the 5rintout o9 the 'ntoDil:Eer 5000 and was commonl: used on all
other breath test instruments at that time. Hhile this historic
in9ormation miCht not Nusti9: overridinC a common de9inition when that
de9inition 5rovided a workable statute( it does Nusti9: reliance on the
adNacent statutor: de9inition in this situation.
73>; He recoCniEe that a criminal statute must be Civen a strict
construction in 9avor o9 the de9endant. He are not reFuired( however( to
inter5ret the statute "so strictl: as to emasculate the statute and
de9eat the obvious intention o9 the leCislature." tate eD rel.
HashinCton v. &ivkind( >50 o. =d 575( 577 4Fla. >d DC" 19776. !his is
not a statute in which the word "5ercent" is ambiCuous in the sense that
it has two com5etinC de9initions( leavinC the de9endant to Cuess at the
a55ro5riate meaninC. !he mathematical de9inition o9 "5ercent" 5rovides
these de9endants with no reasonable inter5retation o9 the statute.
"lthouCh we res5ect the intelliCence o9 the t:5ical Florida driver( we
are con9ident that his or her understandinC o9 this statute and the
related so5histicated test instrument in 1991 and 199> would have been
no Creater than our own. !o accom5lish the statutor: test( this
electronic black boD 5rinted out a breath alcohol "5ercent" a9ter a
5erson breathed into it. !o avoid a conviction under the "5ercent"
statute( a driver would need to be ver: cautious about choosinC to drive
a9ter drinkinC an: siCni9icant amount o9 alcohol.
733; B'. C$/C%1'$/
735; !he order CrantinC the motion in limine in these 9our
consolidated count: court D1' 5rosecutions is reversed. !he cases are
remanded 9or trial. "t trial( the 5hrase "breath alcohol level o9 0.08
5ercent or hiCher" shall be inter5reted to mean "breath alcohol level o9
0.08 Crams 5er =10 liters o9 breath or hiCher." &eversed and remanded.
73?; +%1# and F1%.#&( )).( Concur.
737; "<<#/D'J "
738; '/ !-# C$1/!* C$1&!( '/ "/D F$& +"* C$1/!*( F%$&'D"
739; !"!# $F F%$&'D"(
750; c/o ."&0 #. ,&"-".( #O.
751; tate "ttorne:8s $99ice
75=; <lainti99(
v.
75>; )".# !$DD H$%F&$.
753; c/o )".# -. H-'!#( #O.
755; ==9 .c0enEie "venue
75?; <anama Cit:( F% >=301
757; De9endant.
758; C"# /$. 93@3@=808@!!
759; !"!# $F F%$&'D"
7?0; c/o ."&0 #. ,&"-".( #O.
7?1; tate "ttorne:8s $99ice
7?=; <lainti99(
v.
7?>; ."&0 "%%#/ ""&$/
7?3; c/o )".# -. H-'!#( #O.
7?5; ==9 .c0enEie "venue
7??; <anama Cit:( F% >=301
7?7; De9endant.
7?8; C"# /$. 93@3@>>00@!!
7?9; $&D#& $/ .$!'$/
770; !hese de9endants have 9iled a Noint motion seekinC to have
su55ressed their res5ective "intoDil:Eer" readinCs. !he motion is based
u5on three arCuments( two o9 which were arCued at the hearinC with the
remaininC arCument to be made at another hearinC i9 the motion is denied
on the basis o9 these two. !he 9irst arCument is that because the
a55licable statute 4ection >1?.19>4164b6( Florida tatutes 4199>66
5roscribes drivinC with a blood or breath alcohol level o9 0.08I or
hiCher and the 'ntoDil:Eer 5000 renders its results in terms o9 weiCht
5er unit o9 volume 4Crams 5er =10 liters6 rather than a 5ercentaCe( the
results are not relevant and are con9usinC and misleadinC. !he second
arCument is that each de9endant Cave consent to "an a55roved chemical
test o9 his breath 9or the 5ur5ose o9 determininC the alcoholic content
o9 his blood(" but in 9act the test Civen did not determine the
alcoholic content o9 his blood. 't determined the alcoholic content o9
his breath. !here9ore. neither de9endant8s consent to the breath test
was voluntar:.
771; ti5ulated Facts
77=; 'n addition to the sworn testimon: o9 the tate8s eD5ert
witness( the 5arties aCreed to the 9ollowinC 9acts2
77>; 1. $n or about .arch 10( 1993( the 'ntoDil:Eer 5000 machine used
in these cases was modi9ied to 5roduce evidence o9 breath alcohol
instead o9 blood alcohol. !his was accom5lished b: the installation o9 a
com5uter chi5( called "#@<rom(" which caused the results to read in
terms o9 "Crams 5er =10 liters" rather than "I blood alcohol content."
!he installation o9 this chi5 chanCed onl: one as5ect o9 the machine8s
9unction( its 5rintout.
773; =. !he 'ntoDil:Eer 5000 machine measures onl: breath alcohol and
renders its results in terms o9 "Crams 5er =10 liters" 4weiCht 5er
volume6. 't cannot render results in terms o9 "I blood alcohol content"
4the 5ercent o9 alcohol in the blood6( althouCh 5rior to the #@5rom chi5
installation that is eDactl: what it 5ur5orted to do.
775; >. !he FD%# 9orm 5rovided 9or use with each de9endant 9or the
5ur5ose o9 recordinC the test results 4Form 136( as well as the
res5ective evidence cards 5rinted out b: the machine a9ter each test(
both eD5ress the test results in terms o9 the weiCht in Crams o9 alcohol
in the breath 4",/=10%"6.
77?; 3. !he im5lied consent warninC read to each de9endant and used
to obtain the consent o9 each de9endant to 5rovide a breath sam5le
stated that each de9endant was CivinC his consent to submit to an
a55roved chemical test o9 his breath 9or the 5ur5ose o9 determininC the
alcoholic content o9 his blood.
777; !estimon:
778; !he onl: other evidence 5resented at the hearinC was the
testimon: b: tele5hone o9 Dr. .ark .ontComer:( recoCniEed as an eD5ert
in the 9ield o9 biochemical toDicoloC:. Dr. .ontComer: aCreed that the
'ntoDil:Eer measures the weiCht o9 alcohol 4measured in Crams6 in a
Civen volume o9 breath 4measured in liters6. !his result should never be
eD5ressed as a 5ercentaCe( since( under normal scienti9ic nomenclature(
a 5ercentaCe is the 5ortion o9 one thinC that belonCs to another
measurement o9 the same thinC and it is based u5on 100. !hus( Crams as a
5art o9 liters should not be eD5ressed as a 5ercentaCe( since it is not
two measurements o9 the same thinC and it is not based u5on 100 when the
measurement is Crams 5er =10 liters. !he 5ro5er eD5ression is
"5ro5ortion(" rather than "5ercentaCe." .ass can be a 5ercentaCe o9
another massA it cannot be a 5ercentaCe o9 volume. 't can be eD5ressed
as a 5ro5ortion o9 volume. -e aCreed that 0.08 Crams/=10 liters is not
the same eD5ression or value as 0.08I blood alcohol concentration( i9
one is usinC conventional scienti9ic terms( sim5l: because 0.08I +"C
would have no scienti9ic meaninC 4attem5tinC to eD5ress Crams o9 alcohol
as a 5ercentaCe o9 100 ml o9 blood6. -owever( he allowed that the term
+"C could be recoCniEed and acce5ted b: non@scienti9ic t:5es( as lonC as
it had a de9inite meaninC amonC a Civen Crou5.
779; '. hould 'ntoDil:Eer test results be su55ressed as irrelevantL
780; Hol9rom is charCed b: in9ormation with drivinC while havinC an
unlaw9ul breath alcohol level o9 0.08 Crams 5er =10 liters or above( and
"aron is charCed b: in9ormation with drivinC while havinC an unlaw9ul
blood or breath alcohol level o9 .08 5ercent or above( both in violation
o9 ection >1?.19>( Florida tatutes 4199>6. ection >1?.19>4164b6 makes
unlaw9ul drivinC a vehicle in Florida while havinC "a blood or breath
alcohol level o9 0.08 5ercent or hiCher." De9endant "aron is there9ore
charCed b: in9ormation with violation o9 the statute. De9endant Hol9rom(
on the other hand( is charCed b: in9ormation with drivinC with a breath
alcohol level o9 0.08 Crams 5er =10 liters or above. 'n Hol9rom8s case(
then( it can hardl: be arCued that the machine evidence eD5ressed in
terms o9 Crams 5er =10 liters o9 breath is irrelevant( since that is
eDactl: what Hol9rom is charCed with. ' will there9ore treat the motion
to su55ress in Hol9rom8s case as a motion to dismiss 9or 9ailure to
charCe a crime. tate v. ,ra:( 3>5 o.=d 81? 4Fla. 198>6. 'n either
Hol9rom or "aron the issue remains whether evidence that a sus5ect8s
breath alcohol level was Creater than 0.08 Crams o9 alcohol 5er =10
liters o9 breath( as 5rovided b: the 'ntoDil:Eer 5000( is relevant to
5rovinC that 5erson violated ection >1?.19>4164b6. !his is the issue in
Hol9rom because the tate maintains that havinC a breath alcohol level
o9 0.08 Crams 5er =10 liters is the eFuivalent o9 havinC a breath
alcohol level o9 0.08 5ercent( des5ite the tate8s own eD5ert witness8
aCreement with the de9ense that the two terms are not the same 4since
one term has meaninC and one does not6.
781; !he statute 5rovides a crucial addition that must be taken into
account when evaluatinC its meaninC. !his is 9ound in ection
>1?.19>=4164b61.2
78=; 4b6 1. !he 5ercent o9 alcohol in the blood shall be based u5on
Crams o9 alcohol 5er 100 milliliters o9 blood when anal:EinC blood( or
u5on Crams o9 alcohol 5er =10 liters o9 breath when anal:EinC breath.
78>; !he 5rocedure ' shall use in anal:EinC whether or not the
eD5ressions "0.08 Crams 5er =10 liters o9 breath" and "blood or breath
alcohol level o9 0.08 5ercent or hiCher" are eFuivalent is as 9ollows. '
will 9irst inter5ret the 5lain meaninC o9 each eD5ression( i9 one is to
be 9ound. 'n the absence o9 a 5lain meaninC( ' will resort to 5rinci5les
o9 statutor: construction to determine meaninC. $nce meaninCs have been
identi9ied( the eD5ressions can be evaluated to see i9 the: are
eFuivalent.
783; ",rams o9 alcohol 5er =10 liters o9 breath"
785; !his eD5ression is ver: straiCht9orward( and no one has arCued
that its meaninC is unclear. !he 'ntoDil:Eer 5000 5er9orms its 9unction
b: weiChinC the amount o9 alcohol in the breath sam5le 5rovided b: the
sus5ect and converts that weiCht b: eDtra5olation to the corres5ondinC
weiCht 9or =10 liters o9 breath.
78?; "+reath alcohol level o9 0.08 5ercent or hiCher"
787; He are told b: the section re5roduced above that the 5ercent o9
alcohol in the blood is based u5on Crams o9 alcohol 5er =10 liters o9
breath when anal:EinC breath. !his would seem to indicate that some
mathematical o5eration should be 5er9ormed u5on the results( rendered in
terms o9 Crams 5er =10 liters( in order to convert that result into a
5ercentaCe o9 alcohol in the blood. '9 the leCislature had chosen to use
the 5hrase "eD5ressed as" instead o9 "based u5on(" in ection
>1?.19>=4164b6 1.( this inFuir: would be 9inished( since that
de9inition( even i9 not acce5table in scienti9ic circles( would su99ice
to 9oreclose an: Fuestion o9 ambiCuit: or relevance. 't did not(
however( and we are le9t to determine what "5ercent" ma: be derived 9rom
a result eD5ressed in terms o9 Crams 5er =10 liters.
788; !he term "5ercent" is derived 9rom the French/%atin term "5er
centum" meaninC "o9 each hundred." 't means "a 5art o9 a hundred(" or
"reckoned on the basis o9 a whole divided into a hundred 5arts."
Hebster8s !hird /ew 'nternational Dictionar: 1?75 41st ed. unabridCed
19706. " 5ercent( then( is one one@hundredth 5art. !he &andom -ouse
Dictionar: o9 the #nClish %anCuaCe 10?9 41st ed. unabridCed 19?76. '9
one wishes to eD5ress his observation that a Class is hal9 9ull o9 water
he miCht sa: that it is "50I 9ull." '9 the volume o9 the Class is 100
cubic centimeters( he is sa:inC that the water occu5ies 50 cubic
centimeters o9 that 100. ince we are dealinC with 5arts o9 a whole( we
don8t care how much the water weiChs. '9 it weiChed 1>0 Crams( we would
not sa: that the 5ercentaCe o9 water is 1.> Crams 5er cubic centimeter
or 1.> 5ercent. '9 the volume o9 the container was eD5ressed in liters
4liFuid volume6 and the total volume Nust ha55ened to be =10 liters( the
weiCht o9 somethinC miDed in amonC the =10 liters would not be eD5ressed
as a 5ercentaCe o9 the =10 liters. '9 one decided to iCnore scienti9ic
convention and eD5ress the weiCht o9 alcohol as a 5ercentaCe o9 =10
liters o9 breath( he would still have to divide b: =10( then multi5l: b:
100 to obtain a "5ercentaCe(" since all 5ercentaCes have to be based
u5on 100. !hus( a readinC o9 0.08 Crams 5er =10 liters would become
0.0>8 5ercent 40.08 divided b: =10 times 1006. #D5ressinC a55les as a
5ercentaCe o9 oranCes( althouCh reall: meaninCless( ma: a55ear to have
siCni9icance when the denominator is 100 o9 somethinC. !hus( Crams 5er
100 milliliters o9 blood would not reFuire a conversion to reach a
"5ercentaCe(" since dividinC b: 100( then multi5l:inC b: 100 :ields the
same result as multi5l:inC b: 1. He could thus sa: 0.08 5ercent blood
alcohol content is "the same as" 0.08 Crams 5er 100 milliliters o9
blood( althouCh in realit: it is not 4since one term has meaninC and the
other does not6. !his is in 9act what has been done 9or decades under
Florida law. !he breath testinC eFui5ment duti9ull: re5orted "I +"%" as
it was 5roCrammed to do( and no one thouCht to Fuestion how the weiCht
o9 somethinC could 5ossibl: be a 5ercentaCe o9 the volume o9 somethinC.
-owever( the new de9ense tactic o9 challenCinC the "blood to breath
ratio" caused all this to chanCe.
789; From the testimonies o9 man: 5rior eD5erts in various D1' cases(
' have learned that all breath testinC eFui5ment is based u5on an
assum5tion that the weiCht o9 alcohol in a Civen volume o9 blood will be
a55roDimatel: =100 times Creater than the weiCht o9 alcohol in the same
volume o9 that 5erson8s breath. !hus( the weiCht o9 alcohol in 100
milliliters o9 blood would be =100 times Creater than the weiCht o9
alcohol in 100 milliliters o9 breath. !he weiCht o9 alcohol in 100
milliliters o9 blood would then eFual the weiCht o9 alcohol in =10
liters 4100 ml times =1006 o9 breath. #D5erts testi9ied that what the
machine was reall: weiChinC was the weiCht o9 alcohol in a known volume
o9 breath sam5le and convertinC that to the eDtra5olated weiCht 9or =10
liters o9 breath. De9ense law:ers( however( beCan to challenCe the
=10021 ratio( because o9 evidence that it is not the same 9or all
5eo5le( and even thouCh it is ver: close 9or the vast maNorit: o9
5eo5le( all the de9ense law:er needs is an o55ortunit: to arCue
reasonable doubt. 't wasn8t lonC be9ore de9ense counsel beCan arCuinC
the shortcominCs o9 the blood to breath ratio assum5tion to Nuries( with
5redictable results. !o counter this( the leCislature added ection
>1?.19>=4164b6 1.( Florida tatutes 419916 and added the words "or
breath" to ection >1?.19>4164b6. Ch. 91@=55( sections 1 M =( %aws o9
Fla. ince it now became a violation o9 Florida law to drive with an
unlaw9ul breath alcohol content( it was 5ossible to circumvent the
"assum5tion" arCument( since the assum5tion had been made law. "lso( the
breath testinC eFui5ment was modi9ied to more accuratel: re9lect the
true results o9 its measurements b: the installation o9 the "#@5rom"
chi5( causinC the readout to be chanCed 9rom "I+"%" to ",/=10%." 't was
this chanCe( however( that alerted hunCr: de9ense law:ers that somethinC
was not riCht. "9ter all( how can :ou Nust chanCe a 5ercent to weiCht
5er volumeL '9 the chi5 chanCed nothinC about the o5eration o9 the
machine( which readinC was correct( the one rendered 9or so man: :ears(
or the new oneL !hus( the 5roblem that had been silentl: lurkinC in the
D1' statute became illuminated.
790; -o5e9ull:( ' have demonstrated that the term "breath alcohol
level o9 0.08I or hiCher" has no 4literal6 meaninC( because o9 the word
"5ercent." !here9ore( it cannot be eFuivalent to the eD5ression "Crams
o9 alcohol 5er =10 liters o9 breath." ince the two terms( Civen their
5lain meaninC( are not eFuivalent( ' will neDt consider 5rinci5les o9
statutor: inter5retation to conclude whether the de9endants8 motions
ouCht to be Cranted. 'n other words( can the two eD5ressions be
inter5reted to be eFuivalentL '9 not( the breath test results should be
su55ressed as irrelevant in "aron and the in9ormation dismissed as not
charCinC a crime in Hol9rom.
791; !he law o9 statutor: construction
79=; 'n <arker v. tate( 30? o.=d 1089 4Fla. 19816( the su5reme
court was asked to construe ection 89>.1>( Florida tatutes 419776 to
determine whether or not 5ossession o9 more than 100 5ounds o9 mariNuana
was a third deCree 9elon: or a second deCree 9elon:. !he statute stated
that an:one who sells( manu9actures( delivers or 5ossesses with the
intent to sell( manu9acture or deliver cannabis is Cuilt: o9 a third
deCree 9elon:( eDce5t that the sale( deliver: or 5ossession o9 more than
100 5ounds o9 cannabis is a second deCree 9elon:. "lthouCh the statute
did not literall: sa: so( de9endant arCued that it ouCht to be construed
to add the element o9 intent to 5ossession o9 more than 100 5oundsA he
was charCed with mere 5ossession o9 more than 100 5ounds o9 cannabis(
and there was no evidence o9 intent to sell( manu9acture or deliver. !he
court did not consider itsel9 called u5on to de5art 9rom the literal
meaninC o9 the statute( but it acknowledCed that such a de5arture is
5ermitted when "...a literal inter5retation would lead to an illoCical
result or one not intended b: the lawmakers." 'd. at 1091 4citation
omitted6. 't noted that "...leCislative intent is the 5ole star b: which
we must be Cuided in inter5retinC the 5rovisions o9 a law." 'd. at 109=
4citation omitted6.
79>; Hhen a literal inter5retation o9 a statute would result in an
absurd result( the courts have recoCniEed this as an eDce5tion to the
rule that courts are not at libert: to de9ine the elements o9 a crime in
terms di99erent 9rom those the leCislature used. 'n tate v. <ereE( 5>1
o.=d 9?1 4Fla. 19886( the su5reme court was concerned with the meaninC
o9 another section o9 the D1' statute( ection >1?.19>>416( Florida
tatutes 419856. !his section dealt with the conditions under which a
D1' sus5ect could be reFuired to submit to a blood test( even over his
obNection( one condition o9 which was that the driver had "...caused the
death or serious bodil: inNur: o9 a human beinC." !he issue was whether
that lanCuaCe was meant to include the im5aired driver who inNures onl:
himsel9. " literal inter5retation o9 the statute would necessitate the
conclusion that it did include the im5aired driver( since he would be
4at least in most cases6 a "human beinC." !he court reasoned( however(
that such an inter5retation would be illoCical( takinC into account both
the eDact wordinC o9 the statute and the entire statutor: scheme. 't had
no 5roblem inter5retinC the lanCuaCe to eDclude the driver in liCht o9
the other 5rovisions in the D1' law( as well as the stated leCislative
intent and other clari9:inC lanCuaCe contained in various leCislative
revisions.
793; %ikewise( in Hilliams v. tate( 39= o.=d 1051 4Fla. 198?6( the
su5reme court re9used to ado5t the literal meaninC o9 a statute when
such action would result in a totall: unintended result. 'n that case
the court reviewed a decision b: our First District Court o9 "55eal
4Hilliams v. tate( 3?8 o.=d 337 4Fla. 1st DC"66 which u5held the
de9endant8s conviction o9 ection 790.=>( Florida tatutes 419856
dealinC with 5ossession o9 a 9irearm b: a convicted 9elon. $ne o9 the
de9endant8s 5oints was that the trial NudCe erred in 9indinC that the
wea5on he had used in the crime was a "9irearm" as de9ined b: the
statute. !he statute 5rohibits a convicted 9elon 9rom 5ossessinC a
9irearm unless it is an antiFue or a re5lica o9 an antiFue. De9endant
claimed that his wea5on had to 9all into one o9 those two cateCories.
)ustice "dkins( writinC 9or a unanimous court on this 5oint( reNected
that claim2
795; Hilliams would have us construe the antiFue "or re5lica"
eDce5tions o9 section 790.=> in such a wa: as to condone the
concealment( b: a convicted 9elon( o9 a 9irearm which ma: 5ossibl: be a
re5lica o9 an antiFue( but is obviousl: o5erable and loaded with live
ammunition. He do not believe that the leCislature( when enactinC
section 790.=>( intended that a convicted 9elon could be acFuitted when
5ossessinC a concealed( loaded wea5on b: usinC the eDcuse that the
wea5on is an antiFue or a re5lica thereo9. !his literal reFuirement o9
the statute eDalts 9orm over substance to the detriment o9 5ublic
5olic:( and such a result is clearl: absurd. 't is a basic tenet o9
statutor: construction that statutes will not be inter5reted so as to
:ield an absurd result. 4Citations omitted64em5hasis added6.
79?; 39= o.=d at 1053
797; !he e99ect o9 this decision was to add the term "non@9unctional"
or its eFuivalent to the statute( so as to accom5lish the court8s
5erce5tion o9 what the leCislature intended.
798; De9endants cite a line o9 cases which stand 9or the 5ro5osition(
well@settled in Florida law( that 5enal statutes must be strictl:
construed( ambiCuities should be resolved in 9avor o9 de9endants( and
courts ma: not substitute de9initions o9 crimes not 9ound in the
statutes. ee tate v. ,ra:don( 50? o.=d >9> 4Fla. 19876( and )ackson
v. tate( 515 o.=d >93 4Fla. 1st DC" 19876. -owever( it is clear to me
that an: construction o9 a statute which renders absurd and unintended
results is to be avoided at all costs. "1ndoubtedl: 5enal statutes must
be strictl: construed. -owever( the: must not be construed so strictl:
as to emasculate the statute and de9eat the obvious intention o9 the
leCislature." .artin v. tate( >?7 o.=d 1119 4Fla. 1st DC" 19796.
799; $ne need not consult leCislative anal:ses or trace the
leCislative histor: o9 ection >1?.19> in order to know what the
leCislature intended. 't Fuite clearl: intended to make unlaw9ul one8s
drivinC a vehicle in Florida with a "blood alcohol level" o9 0.08 Crams
o9 alcohol 5er 100 milliliters o9 blood or Creater( or a "breath alcohol
level" o9 0.08 Crams o9 alcohol 5er =10 liters o9 breath or Creater. !he
9act that the word "5ercent" is erroneousl: used does not( in m:
o5inion( render the act void or even con9usinC. For :ears( none o9 us
was "con9used" until some briCht soul 9iCured out that "5ercent" was an
im5ro5er scienti9ic term to use in this conteDt. 't does not reFuire an
ina55ro5riate deCree o9 leCal leCerdemain to substitute the term
"eD5ressed as" 9or "based u5on" in ection >1?.19>=4164b6 1.( which
would have the e99ect o9 de9ininC "5ercent" in a new( but now
consistent( wa:( es5eciall: when one considers that the results o9
CrantinC de9endants8 motions( i9 u5held on a55eal( would be to create
chaos across the state and 5erha5s mandate an emerCenc: session o9 the
leCislature. ' believe that this eD5ression 4"eD5ressed as"6 is what the
leCislature reall: intended to sa:( and ' there9ore conclude that the
eD5ression "J Crams 5er =10 liters" is the eFuivalent o9 "JI +"%(" and
de9endants8 motions to su55ress the breath test results as irrelevant
4or dismiss the in9ormation as not charCinC a crime6 should be denied.
GGGGG +#,'/ F$$!/$!#46 -#&# GGGGG
7100; G9n1 !he 5arties do not contest our Nurisdiction. !he state8s
notice o9 a55eal claimed that the order declared the relevant statute
unconstitutional. 'n 9act( the order u5holds the constitutionalit: o9
the statute b: 5rovidinC a de9inition o9 "5ercent." He conclude(
however( that the order does su55ress evidence and is a55ealable on that
basis. tate v. lane:( ?5> o. =d 3== 4Fla. 19956A Fla. &. "55. <.
9.0>04b64364+6. He have reviewed tate v. +o:d( ?10 o. =d ?3 4Fla. 1st
DC" 199=6( and tate v. 0e5ke( 59? o. =d 715 4Fla. 3th DC" 199=6( and
conclude that the: are distinCuishable. 1sinC the leCal de9inition o9
"5ercent" announced b: the trial court( the de9endant8s breath tests
cannot 5ossibl: be admitted to 5rove a violation o9 section
>1?.19>4164b6.
7101; G9n= 'n this statement o9 the 9acts( we intentionall: describe
the test results usinC the 9ormats em5lo:ed in the records. "n
'ntoDil:Eer 5000 breath test instrument was used in all cases.
710=; G9n> "s the state8s toDicoloCist in this case tried to eD5lain(
this assum5tion is incorrect even when one is workinC with liFuid
alcohol. $ne milliliter o9 water weiChs one Cram. "lcohol is liChter
than water. .ore im5ortant( the assum5tion that the law:ers asked the
math instructor to make is com5arable to com5arinC one milliliter o9
water with =10 liters o9 steam. " volume o9 steam( however( at normal
5ressure is 9ar liChter than a com5arable volume o9 water. 't is this
shi9t 9rom Cas to liFuid that caused the dramatic reduction in the siEe
o9 the de9endants8 5ro5osed "5ercent."
GGGGG #/D F$$!/$!#46 -#&# GGGGG
7#ditor8s note2 'llustrations 9rom the oriCinal o5inion( i9 an:( are
available in the 5rint version;
Co5:riCht 1997 Bersus%aw( 'nc.( 4=0?6 =50@013=
htt52//www.versuslaw.com

19970508

1997.F%.1813