State v. Bastos, 985 So.2d 37 (2008). There, the court held the source code for the breath test machine used in defendants' cases was not “material”, even after the defense provided expert testimony at an evidentiary hearing regarding the inherent “false positive” problem in Intoxilyzer 5000’s. This court grounded their ruling on the notion that since the defendants possess the ability to bring forth testimony or conduct testing to establish any inherent malfunctioning fragments of the machine, responsible for yielding false positives or inaccurate readings, the source code did not need to be provided to the defense. Furthermore, the District Court of Appeals further concluded that there must be a particularized showing demonstrating that observed discrepancies in the operation of the machine necessitate access to the source code, which would be sufficient to meet “material” requirement. Therefore, this court did not find the source code of the Intoxilyzer 5000 “material”, resulting in the defendants motion for a subpoena’s duces tecum being denied
Fla. Admin Code states you have to provide two breath samples within .020 reading to comply with the requirements of consenting to a breath alcohol test. If you fail to give two proper samples, it is consitituted as a refusal.
There was competent, substantial evidence in the record from which the hearing officer could have concluded that, although the motorist did not expressly refuse to submit to a breath alcohol test, she did so by purposely avoiding the submission of valid samples. Despite her evasion, two breath alcohol readings were reported, but they were unreliable for purposes of determining breath alcohol level due to the motorist's failure to supply sufficient breath volume during each of her sample submissions. Because Fla. Admin. Code Ann. R. 11D-8.002(12) clearly provided that a refusal or failure to provide the required number of valid breath samples constituted a refusal to submit to the breath test, it followed that there was competent, substantial evidence to support the hearing officer's determination that the motorist had refused to submit to a breath test. Accordingly, the motorist's right to seek an independent blood test does not arise under § 316.1932(1)(f)(3), Fla. Stat. Furthermore, the circuit court both improperly reweighed the evidence before the hearing officer and applied the wrong law by engaging in its own review of the breath test video.
Dep't of Highway Safety & Motor Vehicles v. Cherry, 91 So. 3d 849
Driver attempted to use excuse of broken nose for the reason to refuse to a breath test. Court held that was not a valid reason for refusing, and suspended his license as required under Fla. Stat. 322.261.
The trial court suspended the driving privileges of appellant driver pursuant to Fla. Stat. chs. 316.1932 and 322.261 (1987). On review, appellant argued that the trial court erred in denying his petition to be relieved of the suspension under ch. 322.261 on the basis that he refused to take the intoxilyzer test due to a broken nose. Although it was undisputed that appellant received a broken nose sometime while he was at the police station after being charged with driving while intoxicated, the testimony was conflicting as to whether his nose was broken before or after he refused to take the test. The court affirmed the judgment, finding that the statutory reasons justifying refusal to take the intoxilyzer test did not include a broken nose. The trial court was entitled to conclude that the suspension was according to law, and it did not abuse its discretion in failing to order reinstatement. Although appellant was acquitted of the charge of driving under the influence, the court held that the jury's verdict was not a determinative factor in a decision to suspend a license.
Solomon v. State, 538 So. 2d 931
The certified conflict presented in this case requires us to consider whether, in a criminal case, subpoenas can be served on an out-of-state corporation's registered agent in Florida to require that out-of-state, nonparty corporation to produce documents or materials located out-of-state, without utilizing the provisions of chapter 942, Florida Statutes. Chapter 942, the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Uniform Law), provides a statutory process by which parties can subpoena out-of-state, nonparty witnesses. See § 942.06, Fla. Stat. (2010). In this case, after certain Florida criminal defendants were charged with driving under the influence (DUI), they sought the computer source codes of the breathalyzer equipment manufactured by CMI, Inc., a Kentucky-based corporation, by serving CMI's registered agent in Florida, even though this source code material was not located in Florida.
The Fifth District Court of Appeal held that criminal defendants must follow the procedures set forth in the Uniform Law when requesting this material from out-of-state, nonparty witnesses and that service on CMI's registered [916] agent was insufficient to compel CMI to produce the source codes. The court then certified conflict between its decision and decisions of the Second District Court of Appeal in CMI, Inc. v. Landrum, 64 So. 3d 693 (Fla. 2d DCA 2010), and the Third District Court of Appeal in General Motors Corp. v. State, 357 So. 2d 1045 (Fla. 3d DCA 1978).
CMI, Inc. v. Ulloa, 73 So. 3d 787, 791 (Fla. 5th DCA 2011)
