IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA. THE STATE OF FLORIDA, Plaintiff, CASE NO: JUDGE: , Defendant.

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IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

THE STATE OF FLORIDA, Plaintiff, CASE NO: v. JUDGE: , Defendant. ___________________________/ MOTION TO SUPPRESS

COMES NOW, the Defendant by and through the undersigned attorney, and moves this Honorable Court pursuant to Fla. R. Crim. P. 3.190(h) and, or 3.220(n) to Suppress the results of the breath test in this cause. This motion is based on the following statement of facts and as grounds in support thereof, Defendant would state as follows:

FACTS

1. The Defendant was read implied consent, and thereafter agreed to take an approved chemical test of her breath.

2. An officer with the Key West Police Department administered an alleged breath alcohol test on the Defendant.

3. The Key West Police Officer did not observe the Defendant during the twenty-minute period prior to administering the alleged breath alcohol test: The Key West Police Officer did not reasonably insure that the Defendant had taken anything by mouth or regurgitate for at least twenty-minutes prior to administration.

4. The Monroe County Sheriff’s Office (responsible for inspecting and maintaining the breathalyzer serial number 66002194) and the Key West Police Department failed to substantially comply with the FDLE Administrative Rules and Florida’s Implied Consent Law regarding the administration of breath alcohol tests; any claimed compliance is pretextual.

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MEMORANDUM OF LAW

In first determining whether the Defendant’s motion to suppress is proper, the court must ascertain whether a constitutional right of the accused has been violated. The United States Supreme Court and the Florida Supreme Court have uniformly held that a Breathalyzer test constitutes a “search” pursuant to the Fourth and Fourteenth Amendments to the United States Constitution. See, Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)(blood, urine, and breath analysis all constitute searches as “they intrude upon expectations of privacy as to medical information”); Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994); Demers and Gayle, Florida DUI Manual 112-113, (2000).

In Skinner, the United States Supreme Court held that a Breathalyzer test, which generally requires the production of “deep lung” breath for chemical analysis, implicates similar concerns about bodily integrity as blood tests, and should likewise be deemed a search.

Obtaining and examining the evidence may also be a search, see, Cupp v. Murphy, supra, 412 U.S., at 295, 93 S.Ct., at 2003, United States v. Dionisio, supra, 410 U.S., at 8, 13-14, 93 S.Ct., at 768, 771-772, if doing so infringes an expectation of privacy that society is prepared to recognize as reasonable, see, e.g., California v. Greenwood, 486 U.S. 35, 43, 108 S.Ct. 1625, 1630, 100 L.Ed.2d 30 (1988); United States v. Jacobsen, supra, 466 U.S., at 113, 104 S.Ct., at 1656.

We have long recognized that a “compelled intrusio[n] into the body for blood to be analyzed for alcohol content” must be deemed a Fourth Amendment search. See Schmerber v. California, 384 U.S. 757, 767-768, 86 S.Ct. 1826, 1833- 1834, 16 L.Ed.2d 908 (1966). See also Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985). In light of our society’s concern for the security of one’s person, see, e.g., Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968), it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests. Cf. Arizona v. Hicks, 480 U.S. 321, 324-325, 107 S.Ct. 1149, 1152-1153, 94 L.Ed.2d 347 (1987). Much the same is true of the breath-testing procedures required under Subpart D of the regulations.

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Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or “deep lung” breath for chemical analysis, see, e.g., California v. Trombetta, 467 U.S. 479, 481, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413 (1984), implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search and Seizure § 2.6(a), p. 463 (1987). See also Burnett v. Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoemaker v. Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986).

Skinner, 489 U.S. at 616-17.

Consequently, the Defendant may raise the violation of federal and state constitutional rights as grounds for suppression of chemical or physical test results. Demers and Gayle, Florida DUI Manual 112-113, (2000)(citations omitted). The court may exclude chemical or physical test results if the sample was improperly secured. The two areas of concern are the defendant’s constitutional rights and the procedure for withdrawing the sample. Id. at 112.

FLORIDA’S IMPLIED CONSENT LAW

Most breath tests are obtained by use of Florida’s Implied Consent law whereby an individual is told that his refusal to submit to an approved breath test will result in the suspension of his driver’s license and that his refusal will be used against him in court. The Fourth and Fourteenth Amendments require that a search not be coerced by explicit or implicit means, by implied threat or covert force. Schneckloth v. Bustamonte, 93 S. Ct. 2041, 2048 (1973). Most breath tests are coerced to the extent that a person’s consent is implied as long as the State is offering an approved breath test:

The requirement that an officer advise the suspect of the consequences of a refusal goes to the very nature of the Implied Consent Law. It is intended to be coercive. It is designed to encourage submission. So that evidence might be secured. Demers and Gayle, Florida DUI Manual 121, (2000)(citations omitted)(emphasis added).

However, if such consent is based upon misinformation or noncompliance with applicable law, that consent is rendered void. State v. Flood, 523 So. 2d 1180 (Fla. 5th

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DCA 1988); State v. Burnett, 536 So. 2d 375 (Fla. 2d DCA 1988); State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992); State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995).

It is clear that where the officer fails to comply with the administrative regulations, the State may still get the results into evidence. This, of course, is not true if the officer secured the test sample by reading the coercive portions of the Implied Consent Law under circumstances where the individual was not required to submit to the test. Demers and Gayle, Florida DUI Manual 161, (2000)(citing, State v. Polak, supra).

Prior to the adoption of the implied consent statutes, scientific tests of intoxication were admissible if a proper predicate was established. State v. Bender, 382 So. 2d 697, 699 (Fla. 1980). After the advent of Florida Implied Consent Law, test results became admissible into evidence “only upon compliance with the statutory provisions and the administrative rules enacted by their authority.” Id. at 699 (emphasis added). In cases where implied consent is not involved, such as the crime of culpable negligence, the traditional predicate may still be used. See, Strong v. State, 504 So. 2d 758, 759-760 (Fla. 1987)(“In conclusion, we hold that section 316.1932(1)(f) is not implicated because the implied consent law, of which that section is a part, is not involved under that facts of this case.”).

In Polak, the court held that the defendant consents, under Florida Implied Consent Law, to take an approved test, not an unapproved test. Misinformation or noncompliance taints the consent; therefore, the traditional predicate cannot be used: “[a]s their consent was based on misinformation, namely, that their licenses would be suspended for failure to submit to an unapproved test, the defendants' consent cannot be deemed voluntary pursuant to the Burnett rule.” State v. Polak, 598 So. 2d 150, 153-154 (Fla. 1st DCA 1992)(footnote omitted)(emphasis added).

It is therefore clear that when the State reads a defendant an Implied Consent warning requiring the defendant to submit to an approved breath test, when in actuality the test is not approved due to the State’s failure to comply with the requirements of Florida Implied Consent Law and F.D.L.E. rules, the subsequent breath test is deemed coerced

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and involuntary, and constitutes an illegal search and seizure under Federal and Florida law.

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TWENTY-MINUTE OBSERVATION RULE

With respect to the administration of breath tests, FDLE Administrative Rule 11D-8.007(3) states:

The breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably insure 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.

The purpose of this rule is to ensure that a subject does not regurgitate, belch, or possess any foreign substances in his or her mouth that might interfere with a true and accurate measure of blood alcohol level. §§316.1932(1)(b)2, (1)(f)1, Fla. Stat. (2000) and §316.1934(3), Fla. Stat. (1996) mandate that a breath test, to be considered valid, must have been performed substantially according to methods approved by the Department of Law Enforcement. If a substantial difference exists between the approved techniques and actual testing procedures, it renders the test or test results invalid.

In the instant case, [OFFICER] failed to substantially comply with the twenty-minute observation period. See, Deposition, [OFFICER]. In so doing, [OFFICER] violated Florida Statute, which required [OFFICER] to perform the test “substantially in accordance” with the Rule. Failure to comply with the requirements of Florida Implied Consent Law and F.D.L.E. rules, make the administered test coerced and involuntary, and constitute an illegal search and seizure under Federal and Florida law.

Statutes conditioning the validity of test results in compliance with approved methods and techniques have uniformly held that test results in violation of these approved methods will render the test results inadmissible, even in the absence of showing any impropriety in the administration of the test itself. State v. Wills, 359 So. 2d 566 (Fla. 2d DCA 1978). “The courts of this State have on numerous occasions been called upon to determine the admissibility of test results obtained in violation of statutory directives

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similar to those violated in this case. The decisions have uniformly held that such results are inadmissible.” Gulley v. State, 501 So. 2d 1388 (Fla. 4th DCA 1987).

For a breath test result to be admissible, the State must establish that it was obtained in ``substantial conformity with the applicable administrative rules.'' State v. Friedrich, 681 So. 2d 1157, 1163 (Fla. 5th DCA 1996). In the instant case, the Court finds that the State failed to prove substantial compliance with Rule 11D-8.007(3). This is not a case in which the Defendant was chewing gum during only the first minute or two of the observation period. Rather, the Defendant was chewing gum during the

entire observation period. Therefore, the Court finds that the breath test is

not admissible. State v. Abouelhosn, 7 Fla. L. Weekly Supp. 225b (Fla. Broward Cty. Ct. Dec. 22, 1999)(Judge Lee).

Nothing less than twenty minutes constitutes substantial compliance with the twenty-minute observation requirement. Department of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994)(Where the State failed to show what happened in the first three minutes of the observation period, while an unidentified person was watching the Defendant, the Fifth District Court of Appeals found the test invalid.) The State has the burden of proving substantial compliance with FDLE regulations. Id. A breath test affidavit in itself is not sufficient to prove twenty-minute observation period. Deel v. Department of Highway safety and Motor Vehicles, 5 Fla. L. Weekly Supp. 283 (Fla. Duval Cty. Ct. Aug. 21, 1997).

Thus, where the State fails to meet its burden of demonstrating that the tests conducted pursuant to statutory authority have fully complied with said statutory provisions and with the administrative rules and regulations enacted thereunder, the test results are inadmissible as a matter of law. Gargone v. State, 503 So. 2d 421 (Fla. 3d DCA 1987); Dorman v. State, 492 So. 2d 1160 (Fla. 1st DCA 1986); State v. Roose, 450 So. 2d 861 (Fla. 3d DCA 1984); State v. Potter, 438 So. 2d 1085 (Fla. 2d DCA 1983); Cambell v. State, 423 So. 2d 488 (Fla. 1st DCA 1982); Grala v. State, 414 So. 2d 621 (Fla. 3d DCA); and Lytwyn v. State, 353 So. 2d 222 (Fla. 1st DCA 1977).

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It is inherently prejudicial and offensive to traditional sense of justice guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution for a criminal defendant to be prosecuted through the use of evidence resulting from an unlawfully maintained breath analysis instrument that is not held in conformity with the requisite Florida statutory provisions and Florida Administrative Code. The Fourth and Fourteenth Amendments require that a search not be coerced by explicit or implicit means, by implied threat or covert force. See, Schneckloth v. Bustamonte, 93 S. Ct. 2041, 2048 (1973); Rochin v. California, 342 U.S. 165 (1952). Consideration of this motion is especially important when the unique nature of breath analysis evidence is such that its admission into evidence, by itself, could result in conviction. See, State v. Bender, supra, (motor vehicle intoxication evidence of breath analysis obtained pursuant to implied consent gives rise to statutory presumptions for impairment); State v. Hass, 597 So. 2d 770 (Fla. 1992)(test results shall be prima facie evidence that the accused had some breath alcohol levels at time of motor vehicle operation). “It must be recognized that the implied consent provision of chapter 322 and the approved testing methods and presumptions contained therein are all interrelated.” Bender 382 So. 2d at 699; See also, State v. Donaldson, 561 So. 2d 648 (Fla. 4th DCA 1990), affirmed, 579 So.2d 728, 729 (Fla. 1991): “Accord Sec. 316.1932(1)(b)(1), Fla.Stat. (1987).”

APPLICATION OF THE EXCLUSIONARY RULE

Under Fla. R. Crim. P. 3.190(h)(1):

(1) Grounds. A defendant aggrieved by an unlawful search and seizure

may move to suppress anything so obtained for use as evidence because: (A) the property was illegally seized without a warrant;

Evidence seized during an unlawful search does not constitute proof against the victim of the search. Wong Sun v. United States, 371 U.S. 471, 484 (1963). The essence of the exclusionary rule is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Id. The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of

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an unlawful invasion. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical evidence and verbal evidence. Id. The aforementioned seized evidence represents the “fruit of the poisonous tree” of lawless state action, and as consequence must be suppressed. Id. at 487.

Other grounds to be argued ORE TENUS.

WHEREFORE, the Defendant respectfully requests this Honorable Court to grant this Motion to Suppress the results of the breath test and that no mention of the administration of the breath test be introduced into evidence in the trial of this matter.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to the Office of the State Attorney, Key West, Florida, this ______ day of ______, 20___.

Respectfully submitted,

_________________________- Samuel J. Kaufman, Esq.

1509 Josephine Street, Suite 1 Key West, Florida 33040 Tel. (305) 292-3926 Fax (305) 295-7947 Florida Bar No.: 0144304

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