Opinion
No. 1D21-2559.
05-24-2023
John Hamilton WAASER, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary , Public Defender, and Tyler Kemper Payne , Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody , Attorney General, and Sharon S. Traxler , Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary , Public Defender, and Tyler Kemper Payne , Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody , Attorney General, and Sharon S. Traxler , Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
AFFIRMED.
Rowe, C.J., and Tanenbaum, J., concur; Bilbrey, J., concurs with opinion.
Bilbrey, J., concurring.
Appellant challenges his conviction and sentence for driving under the influence in violation of section 316.193(1)(c), Fla. Stat. (2019). He claims that the affidavit containing his breath alcohol test results was improperly admitted under section 316.1934(5), Florida Statutes, since the amended information charged DUI only by driving with an unlawful breath alcohol level (DUBAL). Appellant contends that section 316.1934(2), Florida Statutes, only applies to a DUI alleged to be by driving under the influence of alcohol to the extent that a person's normal faculties are impaired. See § 316.193(1)(a). So, Appellant claims, the affidavit could not be admitted without the State establishing a further evidentiary basis for its admission. See, e.g., State v. Bender, 382 So.2d 697 (Fla. 1980); § 90.702, Fla. Stat.
Appellant is correct that section 316.1934(2) has no application to a DUI charge alleged to be only by DUBAL. But Appellant misses the point of section 316.1934(2), which speaks of the presumptions that apply when a DUI is charged alleging "that the person's normal faculties were impaired." When someone is charged with DUI by DUBAL, the presumptions in section 316.1934(2) are irrelevant since driving with an unlawful blood or breath alcohol level in itself is the crime of DUI. See § 316.193(1)(b), (c), Fla. Stat.; State v. Rolle, 560 So.2d 1154, 1155 (Fla. 1990) (explaining that before 1982, impairment DUI was a separate crime than DUBAL). Finally, nothing in subsection 316.1934(2) conflicts with subsection 316.1934(5) which allows the admission of a blood or breath test affidavit if the requirements of the subsection and the implied consent law in section 316.1932 or .1933 are met. The trial court was correct to allow the breath test affidavit to be admitted, and we are correct to affirm.