County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial Comment – Mistrial – The trial judge and State’s comments combined to deprive the defendant of a fair trial. – Judgment and sentence reversed. Lee v. State, No. CRC 03-57 APANO (Fla. 6th Cir. App. Ct. Sept. 29, 2004).











v.                                                                                                                                                                     Appeal No. CRC 03-57 APANO








Opinion filed __________________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Im


William Bennett, Esq.

Attorney for appellant


Nancy Lawler, Esq.

Assistant State Attorney





            THIS MATTER is before the Court on the defendant, Richard Lee’s, appeal from a judgment and sentence for DUI entered by the Pinellas County Court following a jury trial. After reviewing the briefs and record, this Court reverses the judgment and sentence.

The defendant raises numerous issues in his appeal. Of primary concern to this Court are the comments made by the trial judge and State during the defendant’s trial. First, the defendant claims that the trial court made improper comments in front of the jury, and that his ensuing motion for mistrial should have been granted. The Court notes that the first two alleged improper comments were not objected to. The defendant did, however, object to the third comment. During cross-examination of the officer who maintained the breath test machine and conducted the breath test, defense counsel inquired about possible technical problems with the intoxilyzer. During that line of questioning, the State raised an objection. In ruling on the objection, the trial judge stated: “… but apparently we’re going down this rabbit trail way beyond --- .” R. 158-9. At that point defense counsel interjected and asked for a bench conference. It was granted and a motion for mistrial was made. Defense counsel argued that the judge had implied in front of the jurors that he had done something wrong with his line of questioning. The defendant expands upon that argument in his briefs, complaining that the judge’s comments sent a message to the jury that the questions asked by defense counsel about the maintenance of the intoxilyzer were of little value. Comments from the bench must not convey expressly or inferentially the judge’s opinion of the weight, character or credibility of any evidence presented. Abrams v. State, 326 So.2d 211 (Fla. 4th DCA 1976). Arguably, the judge’s comment in the case at bar did just that.

This Court shall now address the defendant’s claims that the State made numerous improper comments during the trial. Some were objected to and some were not. The most troublesome is the State’s comment during closing argument that: “Is it reasonable that this defense attorney is the first defense attorney in the entire history of DUI’s in Treasure Island to come up with the defense that the machine didn’t work? I’m sure there’s been other challenges to this machine.” R. 241. Defense counsel objected and moved for a mistrial. It was denied. Personal attacks on defense counsel and arguing facts not in evidence are improper. See Knight v. State, 672 So.2d 590 (Fla. 4th DCA 1996). As the defendant points out in his brief, the State was improperly implying that other defense attorneys had previously made challenges to the intoxliyzer breath test results and they were all unsuccessful. There was no evidence to support this. This Court finds that when this comment by the State is combined with the trial judge’s comment, the result is a legitimate belief that the overall effect of the comments was unfairly prejudicial to the defendant. The breath test results and the maintenance of the intoxilyzer were important elements of this case. It cannot be said then that the improper comments that went directly to these issues were harmless beyond a reasonable doubt. For that reason, the defendant is entitled to a new trial. Since this Court has determined that a new trial is warranted, a separate review of the remaining alleged improper comments is not needed.

Having already determined that the judgment and sentence must be reversed, this Court does not have to address the two remaining issues raised by the appellant. Nevertheless, this Court shall review the issues in the belief that a resolution of the issues might be useful in future DUI cases.

The defendant argues that his motion for mistrial should have been granted because the State violated the trial court’s motion in limine prohibiting any references to the defendant’s prior 1981 DUI conviction. The defendant claims that during a showing of the videotape of his field sobriety exercises, he mentioned: “Yeah. That’s the way they do it in St.Pete, man. They ask you to do your ABC’s backwards. Think about that. When you’re sober that’s hard to do.” The defense theory is that this implied that the defendant had a prior DUI and was therefore in violation of the motion in limine. This Court does not agree. It is simply too much of a stretch to find that a member of the jury would have interpreted the defendant’s statement as proof that he had a prior DUI. There is nothing to indicate that his “knowledge” of St.Petersburg DUI procedures had been acquired firsthand during his own DUI case. It was, therefore, proper for the trial court to deny the defendant’s motion for mistrial on that point.

Finally, the defendant argues that the trial court erred in admitting into evidence the results of his breath test. He claims that the results should not have been admitted because the maintenance records of the intoxilyzer machine were insufficient. Evidence of the scientific predicate is not required if the State enters into evidence a breath test affidavit that is in compliance with §316.1934(5) Fla.Stat. (2003). The defendant argues that the affidavit is not in compliance with §316.1934(5)(e) that requires: “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” must be contained in the affidavit. The defendant notes that the regulations require two types of maintenance. Rule 11D-8.006 Fla. Admin. Code requires an agency inspection once every month and Rule 11D-8.004 requires a departmental inspection at least once every year. The defendant points out the affidavit only shows the date of the monthly inspection, and that it does not show the date of the yearly departmental inspection. The defendant argues that this affidavit is not in substantial compliance with the statute and therefore the State was required to prove the maintenance prior to the breath test results being admitted.

The fact that the breath test affidavit does not indicate the last inspection date does not invalidate the test results, that date can be established by other evidence. Wright v. Dept. of Highway Safety and Motor Vehicles, 10 Fla. L. Weekly Supp. 879 (Fla. 18th Cir.Ct. Aug. 26, 2003). What the State is required to do was set forth in the case of State v. Donaldson, 579 So.2d 728 (Fla. 1991). The State must present evidence that the test was performed substantially in accordance with the methods and on a machine approved by the department, by a person trained and qualified to perform it. The State must also show that the machine has been calibrated, tested and inspected in accordance with the regulations. Typically, the State introduces the affidavit pursuant to §316.1934(5). When for some reason the affidavit is insufficient, the State must introduce other evidence. In the case at bar, the defendant is arguing that the inspection portion was not completely addressed by the affidavit and the State did not otherwise meet its burden. A review of the record, however, reveals that the State met its burden in this case. This Court agrees with the State’s position --- the testimony of the officer who conducted the test demonstrated that the proper inspections were done on the intoxilyzer. The officer testified that he did the monthly maintenance on this intoxilyzer. He then testified that he sends his monthly maintenance test results to the department so that it can review his inspections to make sure he has done everything properly. He also testified that the department comes once a year to do its own inspections to make sure the intoxilyzer is properly maintained. The officer stated that he did the most recent monthly maintenance on the intoxliyzer and that it was working properly. This was sufficient to demonstrate that the maintenance required by the regulations was performed. The defendant was free to cross-examine the officer on this point. It is important to note that test results will be inadmissible only if the noncompliance with the regulations is of “crucial significance.” See Ridgeway v. State, 514 So.2d 418 (Fla. 1st DCA 1987). In the case at bar, the defendant did not establish that there was a legitimate question about the authenticity or scientific reliability of the test results. Therefore, the results were properly admitted into evidence.

            IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and this matter is remanded to the trial court for action consistent with this Opinion.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of September, 2004.


______________________                                                    ________________________

         James R. Case                                                                             Nancy Moate Ley

        Circuit Judge                                                                                Circuit Judge



                                                            John A. Schaefer

                                                            Circuit Judge

cc:   State Attorney       

        Judge Im

        William Bennett, Esq.