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AlexiaEsq.
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In a DUI Manslaughter case in Florida, is the state required

Resolved Question:

In a DUI Manslaughter case in Florida, is the state required to keep the blood alcohol test kit box (with the expiration date on it) as evidence? What if it has been discarded?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 2 years ago.
Hi, thanks for your inquiry! I have been practicing Criminal law for 17+ years and have specific experience with issues like yours. That being said...I think you may be referring to the solutions used in the testing of an individual, so I will respond with that in mind.

I am not finding that the state is required to keep the box, no. However, there is a requirement (if you are referring to the solutions used for the test, as opposed to the instrument) that the solution be used within 2 years of the date of manufacture ("(3) Alcohol reference solution lots approved by the Department shall be used in agency or Department inspections within two (2) years of the date of manufacture.") ( see here: http://www.lawserver.com/law/state/florida/regulations/florida_regulations_11d-8-0035... AND overall, make sure to review these: http://www.lawserver.com/law/state/florida/regulations/florida_regulations_chapter_11d-8 ). You will be able to exclude the test result if the report noting the date of manufacture and/or expiration date of the solution is missing. (Many a DUI test result has been excluded because the state's solution was a tad overdue, when a Police Department was simply not on top of scheduling.)

See also this:

http://www.flsenate.gov/Laws/Statutes/2012/Chapter316/All
..
(3) A chemical analysis of a person’s blood to determine alcoholic content or a chemical or physical test of a person’s breath, in order to be considered valid under this section, must have been performed substantially in accordance with methods approved by the Department of Law Enforcement and by an individual possessing a valid permit issued by the department for this purpose. Any insubstantial differences between approved techniques and actual testing procedures or any insubstantial defects concerning the permit issued by the department, in any individual case do not render the test or test results invalid.
...

(5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcohol content, as authorized by s.(NNN) NNN-NNNNor s.(NNN) NNN-NNNN is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath if the affidavit discloses:
(a) The type of test administered and the procedures followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and
(e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.

The Department of Law Enforcement shall provide a form for the affidavit. Admissibility of the affidavit does not abrogate the right of the person tested to subpoena the person who administered the test for examination as an adverse witness at a civil or criminal trial or other proceeding.

AND:

Here are your Dept. of Law Enforcement's requirements again:

http://www.lawserver.com/law/state/florida/regulations/florida_regulations_chapter_11d-8

Hope this helps.

Sincerely,

Alexia Esq.



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Customer: replied 2 years ago.

What if you cannot see the date of the manufacturer in the photo's of the box?

Expert:  AlexiaEsq. replied 2 years ago.
Thank you for your follow up:

What if you cannot see the date of the manufacturer in the photo's of the box?
You do not need a photo to prove the date of expiration of the solutions. Rather, the state can present the manufacturer's report of the date of manufacture for the solution # XXXXX noted on the DUI reporting of the test in particular. (The DUI report by the testing officer will have the # XXXXX the solution he put into the instrument, and he can be cross examined (or direct) if one does not believe he recorded that soluation number properly). If that date of manufacture is more than 2 years old as of the date of the DUI test, one then argues that the State lacks proof of accuracy of the test, because old solution, expired, was used.


I'm not seeing that photo is necessary - but I also can't spend weeks doing a more thorough research to see if there is an obscure case out there that may or may not touch on photos (you need to use a subscription to westlaw or lexisnexis, typically). But if the State has its proper documents noted above, lack of photo would not be material, in any event. Do you agree? But again, as per the regulations above, the key is the "(3) Alcohol reference solution lots approved by the Department shall be used in agency or Department inspections within two (2) years of the date of manufacture." - Thus, if the state can not establish that they used it within 2 years, you argue that they have not met this requirement for admissability of the test, because this component, necessary to prove a valid test, has not been met, arguably.

What do you think?
AlexiaEsq., Managing Attorney
Category: Criminal Law
Satisfied Customers: 11841
Experience: 19+ Years of Legal Practice in Criminal Law.
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