County Criminal Court: CRIMINAL LAW Discovery Violation. Even if there was insufficient compliance by the state, with a discovery request, suppression of evidence was error where the trial court failed to consider the proper factors and failed to consider less drastic sanctions. Order suppressing evidence reversed. State v. Farneth, No. CRC 04-5468CFAES (Fla. 6th Cir.App.Ct. May 10, 2006).













Appellee, Lower No: 03482386WTWS



Appeal from verdict, judgment and sentence Pasco County Court


County Judge Marc Salton


Michael J. Harris, Esq., A.S.A.

Attorney for Appellant


Donna P. Levine, Esq.

Attorney for Appellee





Defendant was charged with Driving Under the Influence on October 5, 2003. The defendant submitted to a breath test on a CMI Intoxilyzer 5000 with results of .107 and .103. On January 29, 2004, defendant filed various motions. At issue here is the Motion to Suppress Breath Test Result, in which he argued that the results should be suppressed because the test "was administered on a machine that was not approved for use in the State of Florida due to the failure of the State of Florida to incorporate by reference into its rules the requirement that the machine be operated and maintained pursuant to the manufacturers operator's manual." In the motion, the defendant went on to argue that he had attempted to copy, inspect or pay for an original manual from the manufacturer, "all of which efforts and requests have been rejected by the [FDLE] in the past in other cases and are expected to be rejected in this case." That since FDLE is unable to establish compliance with Rule 11D-8.003, the results should be suppressed. Additionally, the failure to include the manual and schematics violated the defendant's right to due process of law since the manuals are unavailable to the defendant "because of the [FDLE] anticipated refusal to provide the same." On that same date, defendant made a Demand for Full Information, in which he demanded "full information concerning the breath test taken by the defendant. . . . Included within this request is the demand to inspect and/or copy the five manuals regarding the Intoxilyzer 5000 in the [FDLE] possession, as indicated in the attached letter to the FDLE."

On April 21, 2004, the court entered an Order on Defendant's Demand for Full Information, in which the court ordered "[t]he State shall supply the Defendant with copies of the operation manuals, owner's manuals and schematics, which were supplied by the manufacturer of the particular instrument used in this case; or the State shall certify that the materials supplied are identical to the original documents supplied with the breathalyzer instrument used in this case." The state filed two 'Acknowledgements of Additional Evidence'; the first stating that they had a Copy of Speedometer-Test Certificate; and the second which stated they had the following tangible evidence: "Copy of Compact Disk of following material: 1984 Intoxilyzer 5000 Operator's Manual; 1989 Intoxilyzer 5000 Operator's Manual; 1991 Understanding the Intoxilyzer 5000; 1992 Basic Maintenance and Repair Manual; and Miscellaneous Schematics and Diagrams." These Acknowledgements were filed July 23, 2004. On July 26, 2004, the scheduled trial date, the defendant and the State entered into a Stipulated Motion for Continuance because ". . .the State [had] just forwarded discovery which has to be reviewed by defense counsel. In addition, the State recently listed an expert witness who is only able to testify on Friday July 30, 2004, which is also the first day of undersigned counsel's vacation." That motion was granted on July 26, 2004 and the trial was reset for September 13, 2004. The State then filed a Motion to Continue which was granted rescheduling the trial until November 8, 2004.[1]

On November 8, 2004, a jury was picked. On November 10, 2004, the defendant made a Motion in Limine requesting the state not mention the breathalyzer results until they can establish and conform with the Court's order of April 21, 2004.[2] Defendant then provided the court with the state's latest response to that court order along with the disk from the state with the manuals on it. Counsel for defendant acknowledged that he received the response and disk back in July. However, he stated "I asked the officer who was the maintenance officer of this instrument, in the hallway, to indicate to me on this list which one of these owner's manuals goes with the instrument used in my case." Counsel stated that the officer told him he did not know. He further stated that the maintenance officer's name was supplied to him on Friday by fax. He went on to say "[t]he officer maintains that he doesn't know which one goes to it. There is no way for me to know either. There is no way for me to cross-examine him."

The prosecutor responded that the state had provided everything that exists. The prosecutor went on to explain "[t]he maintenance person does not use the operation manual at all. He uses rules from FDLE. He doesn't use any operation manual, but we gave everything that exists according to FDLE."

Counsel and the prosecutor argued back and forth about the manuals until the court finally stated:


[w]ell, I'm going to give you all 45 minutes to come in with the information that I ordered you to give, so that tells Mr. Susanek which particular documentation applies to the machine that this defendant was tested on, so that Mr. Susanek has the ability to cross-examine the State's witnesses as to that particular machine. I'm going to give you 45 minutes. if you need to call the manufacturer or if you need to go over here and have somebody look at whatever serial numbers are on that machine--I'm assuming if they can somehow get that information that would be satisfactory?


Counsel replied, "[i]t would depend on the information, but that would probably fulfill the Court's order which would allow me to cross examine the witness who has no idea what anything is." The court then stated:


[t]he state has 45 minutes to certify that they've been told, that's the only way they would know anyway, that this manual applies to that machine. That would pretty much comply with the order."


After the recess, the prosecutor advised the court that the proper operator's manual was the 1989 Intoxilyzer 5000 manual and the proper schematics was the 1992 Basic Maintenance and Repair Manual.

Defense counsel argued that the whole point of Muldowny[3] is so that the defense can compare the owner's manual and operational manual supplied by the manufacturer against what FDLE has in order to determine whether or not they are different. Furthermore, Muldowny says you get the manuals and schematics that came from the manufacturer; not FDLE.

The court asked the prosecutor if he called the manufacturer and the prosecutor stated that he called FDLE. The prosecutor then indicated that he wanted to ask for a continuance and stated "[w]e'll bring in an expert next time and have that person ready to testify and not have any of these issues." The court replied "If we hadn't picked a jury and you had complied with the order I would be inclined to grant a continuance, just like that, with no questions asked. . . . But, you haven't complied with the order and now you have a witness show up today who says that he doesn't know which manual applies to that machine." The state indicated that it was the 1989 Intoxilyzer 5000 and that it was the state's error that it was not certified by FDLE prior to that date. The court replied "[i]f they had I think that would be sufficient and complied with the court order." Defense counsel interjected "[i]f they certified that the manuals were identical to the ones supplied by the manufacturer." Counsel went on to argue " . . . CMI and other manufacturers have in the past introduced new machines that have gotten kicked out because they haven't went through retesting, and that's part of the problem as well. . .So we remain in the same posture we did 45 minutes ago, not knowing what manual and schematics were applied to this particular instrument so they can be compared against what FDLE says and there is no certification that those are the only manuals that apply to [that model]. And the Court in its order, says the particular instrument used and Muldowney says the particular instrument used. That's very important because the particular instrument used has to be unmodified as to what original was approved."

The state responded that the order permitted the materials to be identical to the original document and that based on what the witness told him the documents are identical and he is in compliance with the order. Counsel disagreed and replied that the manuals and schematics can not be certified as identical to the ones supplied by the manufacturer if the state never talked to the manufacturer. Counsel went on to argue "[t]hat's the whole problem here. That's the problem with them certifying that they're identical to the ones that the manufacturer supplied." The court agreed and stated "I think actually what it comes down to is you have to get it from the Sheriff's Office, if they have the material, or from the manufacturer to say this is what comes with that machine." The prosecutor stated that he did not think it was possible to do 'in a heartbeat" an asked for a continuance. He stated ". . . [w]e'll do everything possible to certify this. I'll even next time, try to bring in an expert witness from trial. That way we can avoid having all the guesswork." Counsel objected to a continuance reminding the court that the order was signed in April and the court heard the state's motion rehearing on the order. The court ordered the state to provide the documents to the defense and they did not. Counsel added "[t]hey've had six months and 45 minutes" to comply and therefore, objected to a continuance.

The court denied the continuance. The state attempted to explain that these new issues were brought up that particular morning; and the argument was not made before a jury was picked. The state attempted to certify the documents and asked if the court wanted him to write it down. The prosecutor said "if [counsel] is unhappy, that's a separate issue. I've complied with the Court's order." The court ruled:

The bottom line is that the order was entered in April, the state did not comply with it. We selected a jury. This morning your witness shows up and tells defense counsel that he doesn't know which document applies to the particular instrument. . . .You know, if he came in and said this document applied to this particular instrument, we wouldn't have this problem. So I'm going to grant their motion in limine. . .. "


The court later stated "[a]t this point in time I am excluding the breath test for failing to comply with the discovery order. ". On November 12, 2004, the court entered a written order granting defendant's motion in limine and excluding the breath test results. This Court finds that the trial court erred.

While there may be some debate as to whether or not there was compliance by the state, even if this Court were to assume insufficient compliance by the state, the trial court failed to consider less drastic sanctions. State v. Eaton, 868 So. 2d 650 (Fla. 2d DCA 2004). That is, even if the court found a violation of discovery, the court must still conduct a Richardson[4] hearing. While exclusion of evidence is a permissible sanction for the violation of a discovery rule, the sanction should be imposed only if no other remedy suffices. State v. Muldowny, 871 So. 2d 911 (Fla. 5th DCA 2004). Muldowney explained:

If, during the course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply with Rule 3.220, the court must conduct a hearing to determine whether the state's violation was inadvertent or willful, whether the violation was trivial or substantial, and, most importantly, what effect, if any, the violation had upon the ability of the defendant to prepare adequately for trial. . . . Only after the court has made a sufficient inquiry into all of the surrounding circumstances may it exercise its discretion to determine whether the state's noncompliance with the disclosure rule resulted in harm or prejudice to the defendant, thereby requiring the imposition of some sanction, such as exclusion of the evidence. (citation omitted).


Id. at 914.

This Court finds that the trial court in this case never considered whether the violation was inadvertent or willful. Based on the facts in this case, there appears to be very little evidence it was willful. The trial court also never made a finding as to whether or not the violation was trivial or substantial. Finally, other than a few statements on the record, the court never made a finding about what effect, if any, the violation had upon the ability of the defendant to prepare adequately for trial; especially in light of the fact that the defendant did not have a witness and his only argument was that it prohibited him from effective cross examination. More importantly, as evidenced by the record, the defendant did not seek any assistance from the court other than this motion in limine heard on the morning of trial. Moreover, with regard to the motion, this Court finds that the motion filed by defendant was in fact an untimely motion to suppress disguised as a motion in limine. As such, the defendant contributed to his own inability to adequately prepare for trial by filing it as a motion in limine and waiting until the morning of trial to address the issue. It is, therefore,

ORDERED and ADJUDGED that the ruling of the trial court is REVERSED.


DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of April, 2006.


W. Lowell Bray, Circuit Judge

Primary Appellate Judge



Daniel D. Diskey

Circuit Judge



Stanley R. Mills

Circuit Judge


Copies furnished to:

Honorable Marc Salton

Michael J. Harris, Esq., A.S.A.

Donna P. Levine, Esq.


[1] This Motion is listed in the docket entry but not in the record.

[2] That Order stated "[t]he State shall supply the Defendant with copies of the operation manuals, owner's manuals and schematics, which were supplied by the manufacturer of the particular instrument used in this case; or the State shall certify that the materials supplied are identical to the original documents supplied with the breathalyzer instrument used in this case."

[3] In Muldowny, the court held that: (1) defendants were entitled to documentation related to breath test machine, and (2) exclusion of breath test results was appropriate remedy for State's failure to provide defendants documentation related to breath test machine.
State v. Muldowny,  871 So.2d 911 (Fla. 5th DCA 2004).


[4] Richardson v. State, 246 So. 2d 771 (Fla. 1971).