MILLER v. STATE

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Docket Number

No. 75708.

Attorney(S)

Perry M. Adair of Bender, Bender, Chandler Adair, P.A., Homestead, for petitioner. Robert A. Butterworth, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., Miami, for respondent.

Judges

Gerald Kogan

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Smart Summary

Factual and Procedural Background

Jessie Lee Miller was charged with driving under the influence (DUI) and other driving offenses. Approximately one hour and twenty minutes after being stopped by police, Miller submitted to a chemical breath test that registered a blood-alcohol level (BAL) of 0.14. Miller declined to disclose when he last consumed alcohol. Due to this refusal, the state's expert toxicologist stated it was impossible to determine with reasonable certainty Miller's BAL at the time he was operating the vehicle. The expert acknowledged the BAL could have been below the legal limit of 0.10 at the time of driving, especially if Miller had consumed alcohol immediately prior to or while driving.

Based on this expert testimony, Miller's counsel moved to suppress the test results on grounds of irrelevance and prejudice. The trial court granted the motion and certified a question to the Third District Court of Appeal. The Third District reversed, relying on Florida statutory provisions governing admissibility of chemical test results and public policy considerations, and certified the question of great public importance to the Supreme Court of Florida. This opinion addresses that certified question.

Legal Issues Presented

Whether the numerical result of a blood alcohol test taken an hour and twenty minutes after the defendant's last operation of a motor vehicle is admissible evidence when the state's expert cannot testify to the defendant's BAL at the time of driving and acknowledges the BAL could have been below the legal limit at that time.

Arguments of the Parties

Petitioner (Jessie Lee Miller)

The blood-alcohol test results are irrelevant and prejudicial because the state's expert cannot establish the defendant's BAL at the time of driving.
The inability to scientifically "relate back" the BAL to the time of driving renders the test results inadmissible.

Respondent (State of Florida)

The blood-alcohol test results taken within a reasonable time after the stop are admissible under Florida statutes, even if the state cannot scientifically establish the BAL at the time of driving.
Any uncertainty about the defendant's BAL at the time of driving goes to the weight and credibility of the evidence, not its admissibility.
Public policy disfavors allowing defendants to "race" to a location where their BAL might rise above the legal limit before testing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Miller, 555 So.2d 391 (Fla. 3d DCA 1989)	Certified question on admissibility of blood-alcohol test results taken after a delay.	Question certified to the Supreme Court of Florida for resolution of public importance.
Section 316.1934(2), Florida Statutes (1987)	Statutory admissibility of chemical test results when properly conducted.	Used by the district court to reverse suppression and hold test results admissible if procedures were followed.
State v. Tischio, 527 A.2d 388 (N.J. 1987), appeal dismissed, 484 U.S. 1038 (1988)	Policy against allowing defendants to "race" to increase blood-alcohol level before testing.	Supported the district court's conclusion that doubts about BAL timing affect weight, not admissibility.
Garcia v. State, 564 So.2d 124 (Fla. 1990)	Broad and flexible concept of relevancy under the Florida Evidence Code.	Supported the principle that evidence is admissible if it tends to prove or disprove a material fact.
State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990)	Admissibility of blood-alcohol test results obtained within a reasonable time despite inability to scientifically extrapolate BAL at time of driving.	Adopted by the Florida Supreme Court as the preferred approach; inability to "relate back" affects weight, not admissibility.
Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989)	Inadmissibility of numerical BAL if state cannot relate back to time of driving; limited admissibility of positive alcohol presence with jury instruction.	Discussed as an alternative approach; the court declined to adopt this method in favor of Kubik.
Haas v. State, 597 So.2d 770 (Fla. 1992) (Kogan, J., concurring in part, dissenting in part)	Requirement that the State prove every element of the offense beyond a reasonable doubt.	Referenced in Justice Kogan's special concurrence emphasizing that admissibility is distinct from proof beyond a reasonable doubt.

Court's Reasoning and Analysis

The Court began by recognizing the certified question concerning the admissibility of blood-alcohol test results obtained after a delay and where the expert cannot testify to the defendant's BAL at the time of driving. It rejected the district court’s view that admissibility hinges solely on compliance with statutory testing procedures, emphasizing that such evidence remains subject to all other applicable evidentiary rules and precedents.

The Court acknowledged that under the Florida Evidence Code, evidence is admissible if relevant, i.e., if it tends to prove or disprove a material fact, and if its probative value is not substantially outweighed by potential prejudice or confusion. It noted that blood-alcohol test results taken some time after driving may still be relevant and probative.

The Court analyzed two prevailing approaches from other jurisdictions: the Kubik approach, which admits numerical BAL results obtained within a reasonable time and treats inability to extrapolate back to the time of driving as a credibility issue; and the Desmond approach, which excludes such numerical results unless accompanied by a cautionary jury instruction limiting their use.

Favoring the Kubik approach, the Court held that the State’s inability to scientifically "relate back" the BAL to the time of driving affects the weight of the evidence, not its admissibility, provided the test was conducted within a reasonable time. The Court defined "reasonable time" as one where the test results tend to prove or disprove a material fact and where probative value outweighs prejudice or confusion.

Applying these principles to the present case, the Court found that the blood-alcohol test was conducted within a reasonable time and its probative value was not outweighed by prejudice. Therefore, the trial court erred in suppressing the evidence and removing the question from the jury.

Holding and Implications

The Supreme Court of Florida held that the numerical result of the blood-alcohol test taken an hour and twenty minutes after the defendant was stopped is admissible evidence, even if the State's expert cannot testify to the defendant's exact blood-alcohol level at the time of driving, provided the test was conducted within a reasonable time and the probative value outweighs any prejudice.

The direct effect of this decision is that blood-alcohol test results obtained within a reasonable time after driving may be admitted in DUI prosecutions despite uncertainty about the defendant's BAL at the exact time of operation. This ruling clarifies the evidentiary standard for admissibility but leaves weight and credibility for the jury to determine. The Court did not establish a new burden of proof standard but left that issue distinct from admissibility. No new precedent was set beyond applying existing evidentiary principles to this context.

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JESSIE LEE MILLER, PETITIONER, v. STATE OF FLORIDA, RESPONDENT.

PER CURIAM.

We have for review State v. Miller, 555 So.2d 391 (Fla. 3d DCA 1989), which certified the following question of great public importance:

Whether the numerical result of the blood alcohol test taken [an hour and twenty minutes] after the defendant's last operation of a motor vehicle is admissible evidence where the state's expert witness would testify that the numerical reading would not be the BAL [blood-alcohol level] at the time the defendant was operating the vehicle, where that witness was unable to testify what the defendant's BAL was at the time he was operating the vehicle, and where the witness testified that the BAL could have been lower than .10% at the time the defendant operated the vehicle.

Id. at 392, 394. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the affirmative.

Jessie Lee Miller was charged with DUI and other driving offenses. One hour and twenty minutes after being stopped, he was given a chemical breath test that registered a blood-alcohol level of 0.14 Miller exercised his constitutional rights and refused to tell police when he had consumed his last alcoholic beverage.

The state's expert toxicologist stated in a deposition that, because of this refusal, it was impossible to determine with reasonable certainty Miller's blood-alcohol level at the time Miller was driving the car. This is because alcohol is not completely absorbed into the system immediately upon being consumed. Some portion of recently ingested alcohol will remain in the stomach. Thus, the blood-alcohol level may rise over time as this alcohol is absorbed. The expert said it was scientifically possible the blood-alcohol level was below the legal limit of 0.10 at the time Miller was driving. This particularly could have been true if Miller had consumed alcoholic beverages immediately prior to driving, or while operating, the vehicle.

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. In pertinent part, the statute 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 alcoholic beverages or controlled substances, when affected to the extent that his normal faculties were impaired or to the extent that he was deprived of full possession of his normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible into evidence when otherwise admissible. . . .

(Emphasis added.) The court below concluded that "[i]t is noncompliance with these proper testing procedures [required by sections 316.1932 and 316.1933] which would render test results inadmissible." Miller, 555 So.2d at 393.

The district court also relied on the policy elaborated by courts in other states that persons are not privileged to "race" from one place to another before the blood-alcohol level rises above the legal limit. E.g., State v. Tischio, 527 A.2d 388 (N.J. 1987), appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988). The district court concluded that any doubts as to Miller's blood-alcohol level at the time of arrest went to the weight or credibility of the evidence, not its admissibility, and reversed the trial court's suppression of the blood-alcohol evidence. The district court then certified the same question it had received from the trial court. Miller, 555 So.2d at 394.

Initially, we must disagree with the suggestion made by the district court that the admissibility of blood-alcohol test evidence is determined solely by reference to sections 316.1932 and 316.1933, Florida Statutes (1987). This evidence continues to be subject to all other applicable precedent and rules regarding the admissibility of evidence.

However, it is equally clear that, at least in some circumstances, evidence of blood-alcohol content obtained a significant time after a person is stopped on suspicion of driving under the influence may be relevant and probative evidence. Under the Florida Evidence Code, evidence is relevant and therefore admissible if it tends to prove or disprove a material fact, sections 90.401-.402, Florida Statutes (1987), provided the probative value of that evidence outweighs the potential prejudice or confusion it may cause. § 90.403, Fla. Stat. (1987). We have described "relevancy" as a broad, malleable concept that may involve many different inquiries to determine whether evidence tends to prove or disprove a material fact. Garcia v. State, 564 So.2d 124 (Fla. 1990). Clearly, there are circumstances under which evidence of blood-alcohol content would be relevant and probative even though a significant amount of time has passed after the defendant was stopped and even where the state cannot establish probable blood-alcohol content at the time the defendant was in control of a vehicle.

However, American courts have shown some division on exactly what line separates the relevant and probative from the irrelevant or nonprobative. Two broad approaches have developed.

The weight of authority is exemplified by State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990). In Kubik, the Nebraska Supreme Court held that the numerical blood-alcohol content was admissible evidence if obtained within a reasonable time after the defendant was stopped, even if the state cannot provide a scientific basis for extrapolating the blood-alcohol content back to the time when the defendant was operating a vehicle. The Kubik Court determined that the inability of the state to "relate back" was a question of credibility or the weight of the evidence, not admissibility, and that evidence of blood-alcohol content thus was admissible provided an unreasonable amount of time had not elapsed until the test was taken.

The other line of cases is exemplified by Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). In that case, the Arizona Supreme Court held that the inability to "relate back" a defendant's blood-alcohol content rendered the numerical reading of the test inadmissible because of its potential unreliability. However, the state still would be entitled to introduce evidence showing that, at the time the test was taken, the defendant tested positive for alcohol, provided the trial court gave a cautionary instruction. This instruction must inform the jury that the evidence of the presence of blood alcohol is admitted for the limited purpose of showing that the defendant had alcohol in the blood at the time the test was taken and that such evidence standing alone is not sufficient to show either that the defendant was impaired or had an unlawful blood-alcohol level at the time a vehicle was being operated.

While we see merit in both of the approaches above, we believe that the spirit underlying Florida's drunk-driving laws as well as practical considerations favor the approach taken in Kubik. In other words, the inability of the State to "relate back" blood-alcohol evidence to the time the defendant was driving a vehicle is a question of credibility and weight-of-the-evidence, not of admissibility, provided the test is conducted within a reasonable time after the defendant is stopped.

What is "reasonable" in this context will depend upon the facts of each case. As a general rule, we believe a test is conducted at an unreasonable time if the results of that test do not tend to prove or disprove a material fact, or if the probative value of the evidence is outweighed by its potential to cause prejudice or confusion. In the present case, the totality of the facts indicate that Miller's blood-alcohol test was neither conducted after an unreasonable lapse of time nor was its probative value outweighed by the potential for prejudice or confusion. Accordingly, the trial court erred as a matter of law in removing the question from the jury.

For the reasons expressed above, we approve the opinion below, except as noted in this opinion, and remand the case for further proceedings.

It is so ordered.

SHAW, C.J., and OVERTON, McDONALD and GRIMES, JJ., concur.

KOGAN, J., concurs specially with an opinion, in which BARKETT, J., concurs.

BARKETT, J., concurs in result only.

KOGAN, Justice, specially concurring.

While I concur with the majority's analysis as far as it goes, I do so subject to the reservations expressed in my partial dissent in Haas v. State, 597 So.2d 770 (Fla. 1992) (Kogan, J., concurring in part, dissenting in part). I agree that tests conducted on a blood sample taken within a reasonable time are admissible evidence, under the terms noted by the majority. However, I also find that the State remains subject to the requirement of proving beyond a reasonable doubt every element of the offense. U.S. Const.Amend. XIV; art. I, § 9, Fla. Const.

In the case at hand, the trial court would be obliged to direct a verdict of not guilty if the only evidence against Miller is the expert toxicologist's testimony. This is because the expert stated that Miller's blood-alcohol level scientifically may have been below the legal limit at the time he was driving the car. Such testimony creates reasonable doubt that would preclude a conviction unless there is other credible evidence to meet the State's burden. If this other evidence does not exist on the record, the trial court would have no choice but to direct a judgment of acquittal upon a proper motion. Admissibility, in other words, is a question entirely distinct from the due process requirement of proof beyond a reasonable doubt.

BARKETT, J., concurs.