Belvin v. State

Citations: 922 So. 2d 1046; 2006 WL 545589Docket: 4D04-4235

Court: District Court of Appeal of Florida; March 7, 2006; Florida; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Petitioner Bruce Belvin sought certiorari review of a final decision from the Palm Beach Circuit Court, which upheld his DUI conviction and sentence. Belvin argued that the admission of a breath test affidavit without the technician's testimony violated his constitutional right to confrontation under Crawford v. Washington. The breath test results recorded were 0.165, 0.144, and 0.150. During his non-jury trial, Belvin objected to the affidavit, citing hearsay and asserting his right to cross-examine the technician, Rebecca Smith, who did not appear in court. The trial court initially admitted the affidavit, concluding it was trustworthy, leading to Belvin's conviction. On appeal, the circuit court initially reversed the conviction, labeling the affidavit as testimonial hearsay. However, upon rehearing, the court reversed its stance, declaring the affidavit non-testimonial and affirming the conviction. Belvin then sought certiorari review, with the state contending that the affidavit's admission was justified under public records hearsay exceptions. The court emphasized that to grant certiorari, there must be a serious error constituting a departure from essential legal requirements, resulting in a miscarriage of justice.

The petitioner argues that the circuit court's ruling regarding the breath test affidavit violates established law, specifically conflicting with the Supreme Court's ruling in Crawford v. Washington, which states that testimonial hearsay is inadmissible in criminal cases unless the witness is unavailable and the defendant had an opportunity for cross-examination. The critical issue is whether breath test affidavits qualify as testimonial hearsay under Crawford. In drunk driving cases, the state must prove that breath tests were conducted according to approved methods by qualified personnel using properly maintained equipment. To ease this burden, Florida statutes allow the admission of affidavits that provide foundational evidence for breath test results as public records, specifically under sections 316.1934(5) and 90.803(8), which outline the requirements for admissibility without further authentication. These affidavits must detail the test administered, the time of sample collection, the numerical results, the qualifications of the test administrator, and maintenance of the testing instrument. Although the affidavit is admissible as evidence, the individual tested retains the right to subpoena the test administrator for cross-examination. The state contends that the circuit court's ruling is consistent with established law based on these statutes and relevant district precedent, while certiorari review may consider 'clearly established law' from various legal sources, including constitutional law.

Crawford v. Washington established that hearsay evidence of a testimonial nature must be subject to cross-examination in criminal cases, overturning the previous standard set by Ohio v. Roberts, which allowed hearsay from unavailable witnesses if it had particularized guarantees of trustworthiness. The Supreme Court emphasized that the Confrontation Clause's historical intent requires reliability to be assessed through cross-examination rather than through judicial determinations of reliability. Although the Court did not define "testimonial" evidence exhaustively, it indicated that materials such as affidavits, which involve formal declarations made for establishing facts, fall within this category. The petitioner argues that breath test affidavits should be considered testimonial under Crawford, as they are created with the expectation of being used in legal proceedings. The state counters this argument by claiming that breath test affidavits are non-testimonial and qualify as public records, distinguishing them from the affidavits referenced in Crawford due to their nature as mere observations rather than formal testimony involving questioning.

Breath testing operators must adhere to specific procedures to ensure the reliability of test results, including maintaining a log, observing the defendant for a designated period, and analyzing samples within a specified timeframe. Their affidavits detail their actions and observations during the breath test, including the start of the observation period and the procedures followed. The affidavit is considered 'testimonial' and is crucial for establishing elements of the crime of driving under the influence, despite Florida's 'substantial compliance' standard allowing for minor procedural deviations. 

The state contends that breath test affidavits are admissible as 'public records' even without the technician's presence at trial, citing Crawford v. Washington, which allows for certain business and official records to be admitted as non-testimonial. Although Florida statutes classify breath test affidavits as public records, this classification does not determine their testimonial nature under Crawford. 

The case of Gehrmann v. State previously upheld the admissibility of breath test affidavits without violating confrontation clauses, but this decision must be re-evaluated in light of Crawford. The affidavit comprises various components, including procedural details and maintenance records of the breath test instrument. The petitioner challenges the testimonial nature of the technician's procedural documentation, which the court acknowledges as valid and notes that Gehrmann has been abrogated by Crawford. Consequently, the court now holds that the introduction of breath test affidavits at trial must allow the defendant the opportunity to cross-examine the technician on the procedures followed. The state’s argument to also recede from prior holdings is rejected.

In Irizarry, the court did not determine if the breath test result affidavit's admission violated the Confrontation Clause but ruled that the affidavit section regarding the maintenance of the breath test machine was admissible without additional proof of accuracy. The petitioner did not challenge whether the maintenance-related portions of the affidavit violated the Confrontation Clause as established in Crawford. However, the First District Court of Appeal previously ruled in Shiver that such maintenance information is considered testimonial hearsay, as the arresting officer merely confirmed another's assertion regarding the breathalyzer's maintenance. Conversely, in Napier, the court found that documents concerning breath test inspections did not violate the Confrontation Clause, deeming them non-testimonial.

The state argued that even if the affidavit were deemed testimonial, the petition should be denied because the petitioner could have deposed the technician prior to trial under Rule 3.220(h)(1)(D), which allows such depositions in misdemeanor or criminal traffic cases with good cause. The circuit court admitted the affidavit based on the technician's unavailability and the petitioner's failure to depose her, referencing Blanton, which stated that Crawford's aim is met through discovery depositions. However, the first district in Lopez rejected Blanton, asserting that a discovery deposition does not equate to a prior cross-examination opportunity. The court highlighted the distinction between discovery depositions and depositions intended for perpetuating testimony, noting that the defendant is not present at discovery depositions and thus lacks the same opportunity for cross-examination required by Crawford.

The Florida discovery rule potentially negates the constitutional requirements established in Crawford, provided the state can demonstrate that the declarant was available for deposition prior to trial. A discovery deposition does not equate to an opportunity for cross-examination. In Contreras v. State, the court ruled that a video statement from a child victim in a sexual battery case did not meet the standards of Crawford and the Sixth Amendment, rejecting the state's argument that the victim's deposition testimony sufficed for confrontation rights at trial. Although there could be scenarios where a discovery deposition might fulfill the requirement for prior cross-examination, such circumstances were absent in this case.

Florida Statute § 316.1934(5) grants defendants the right to subpoena breath test operators as adverse witnesses, yet this does not sufficiently protect the defendant's Sixth Amendment confrontation rights. The burden of proof lies with the state, meaning the defendant is not obligated to present evidence of guilt and can remain silent during the prosecution's case, insisting on constitutional compliance. The court concluded that portions of the breath test affidavit regarding the technician's procedures and observations are testimonial evidence, and their admission in the DUI trial infringed on the defendant's confrontation rights, constituting a miscarriage of justice. The court granted the petition for certiorari and posed a significant public question regarding the testimonial nature of the breath test affidavit under Crawford.

Judge May concurred, agreeing that parts of the affidavit are testimonial and inadmissible under Crawford, but noted that elements such as the type of test, collection timing, and operator certification should be considered business records, which may not fall under Crawford’s requirements. He acknowledged the statutory provision allowing for subpoenaing the operator, arguing it offers the necessary cross-examination opportunity, although the majority opinion disagreed.