Gudmundsson v. State

OPINION OF THE COURT LAWRENCE V. JOHNSTON, Circuit Judge. This case involves the admissibility of breath tests, wherein consecu [47] tive samples were not obtained within a + or — 0.02% deviation. The samples obtained were respectively .136%, .108% and .136%. The issue is whether these three tests were inadmissible because they did not comply with HRS Rule, Fla. Admin. Code § 10D-42.0211(4), which requires two consecutive breath samples within five minutes of each other and within + or — 0.02% deviation. Consecutive means to follow in uninterrupted succession. Russomanno v Leon Decorating Co., 119 N.E. 2d 367 (N.Y. 1954). Consecutive is defined as “successive; succeeding one another in regular order; to follow in uninterrupted succession”. BLACKS LAW DICTIONARY 276 (5th Ed. 1979). There is no evidence that the defendant deliberately interfered with the proper testing procedure. The three breath tests did not follow in uninterrupted succession, therefore, they are inadmissible and the defendant’s Motion in Limine should have been granted. The decision of the trial court in denying the defendant’s Motion in Limine is REVERSED and this case is remanded for further proceedings in accordance with the views expressed in this opinion. WOODSON, J. WILLIAM, Judge, concurs. ANTOON, JOHN, Judge, dissents.