Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005). · Go Syfert
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Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005). Cases Citing This Book View Copy Cite
57 citation events (57 in the last 25 years) across 21 distinct courts.
Strongest positive: Helms v. State (fladistctapp, 2010-05-20) · Strongest negative: Ramirez v. State (indctapp, 2010-05-28)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited "but see" Ramirez v. State (2×)
Ind. Ct. App. · 2010 · signal: but see · confidence high
But see Shiver v. State, 900 So.2d 615, 618 (Fla.Dist.Ct.App.2005) (contrary view); People v. Orpin, 8 Misc.3d 768 , 796 N.Y.S.2d 512 , 516 (N.Y.Just.Ct.2005).
discussed Cited "but see" Millard v. United States
D.C. · 2009 · signal: but see · confidence high
But see, e.g., Shiver v. State, 900 So.2d 615, 618 (Fla.Dist.Ct.App. 2005) (affidavit of maintenance of breath-test instrument was testimonial because “the only reason the affidavit was prepared was for admission at trial”); United States v. Wittig, No. 03-40142JAR, 2005 WL 1227790 , *2 (D.Kan.2005) (unpublished) (certificate authenticating business records held testimonial). 14 .
discussed Cited "but see" State v. Wang, 2007cac090048 (4-28-2008)
Ohio Ct. App. · 2008 · signal: but see · confidence high
Absent a showing of prejudice to appellant, the BAC test result is admissible. {¶ 28} In holding that sworn statements made by breath testing machine supervisor that the machine used to test defendant had been properly calibrated and tested for accuracy were not testimonial hearsay, and therefore were not subject to Confrontation Clause, the Hawaiian Court of Appeals noted: {¶ 29} "[T]he majority of state courts considering the issue have decided that Crawford does not bar the use of documentary evidence to establish the foundation for breath test results: Green v. DeMarco , 11 Misc. 3d 451 …
discussed Cited "but see" Wimbish v. Commonwealth
Va. Ct. App. · 2008 · signal: but see · confidence high
See Abyo v. State, 166 P.3d 55, 60 (Alaska Ct.App. *487 2007) (records certifying the date that a breath test machine was tested are nontestimonial); Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471, 480 (Ct.App.2006) (same); Pierce v. State, 278 Ga.App. 162 , 628 S.E.2d 235, 238 (2006) (same); State v. Marshall, 114 Hawai'i 396 , 163 P.3d 199, 205 (Ct.App.2007) (same); Napier v. State, 820 N.E.2d 144, 149-50 (Ind.Ct.App.2005) (same); People v. Kim, 368 Ill.App.3d 717 , 307 Ill.Dec. 92 , 859 N.E.2d 92, 93-94 (2006) (same); Commonwealth v. Walther, 189 S.W.3d 570, 575 (Ky.2006) (same); Stat…
discussed Cited "but see" State v. Chun
N.J. · 2008 · signal: but see · confidence high
But see Shiver v. State, 900 So.2d 615, 618 (Fla.Dist.Ct.App.2005) (holding that breath test affidavit, including portion used to show that device had required maintenance, is testimonial). *144 To be sure, some of these documents and certificates are prepared by the police, but none of them relates to or reports a past fact and none of them is generated or prepared in order to establish any fact that is an element of the offense.
cited Cited "but see" Abyo v. State
Alaska Ct. App. · 2007 · signal: but see · confidence high
But see Shiver v. State, 900 So.2d 615, 618 (Fla.Dist.Ct.App.2005). 14 . 212 Ariz. 182 , 129 P.3d 471 . 15 .
cited Cited "but see" State v. Kirkpatrick
Wash. · 2007 · signal: but see · confidence high
But see Shiver v. State, 900 So. 2d 615, 618 (Fla. Dist.
discussed Cited "but see" State v. Kirkpatrick
Wash. · 2007 · signal: but see · confidence high
App.2006) (certification of breath test instrument not testimonial); Commonwealth v. Walther, 189 S.W.3d 570, 575 (Ky.2006) (same); State v. Carter, 326 Mont. 427 , 114 P.3d 1001, 1007 (2005) (same); State v. Forte, 360 N.C. 427 , 629 S.E.2d 137, 144 (2006) (laboratory report on chain of custody of DNA (deoxyribonucleic acid) material and DNA analysis not testimonial), cert. denied, ___ U.S. ___, 127 S.Ct. 557 , 166 L.Ed.2d 413 (2006); State v. Dedman, 136 N.M. 561 , 102 P.3d 628, 636 (2004) (report showing defendant's blood alcohol level not testimonial); State v. Norman, 203 Or.App. 1 , 125 …
discussed Cited "but see" State v. Marshall
Haw. App. · 2007 · signal: but see · confidence high
In the instant case, the district court stated: “I would agree with [defense counsel that admission of Exhibit 4 would violate the Confrontation Clause] if indeed I believe[d] [it] was testimonial or were testimonial except that Crawford 5 by its own terms indicates that evidence, lots of evidence isn’t including business records, and this is nothing other than the public twin of the business record exception.” 6 (Footnotes not in original quote.) While Hawai'i appellate courts have not ruled on the admissibility of sworn statements made by Intoxilyzer supervisors since the Supreme Court…
discussed Cited as authority (rule) Helms v. State
Fla. Dist. Ct. App. · 2010 · confidence medium
A testimonial statement “ ‘is typically a solemn declaration or affirmation made for purposes of establishing or proving some fact.’ ” Shiver v. State, 900 So.2d 615, 617 (Fla. 1st DCA 2005), quoting Crawford v. Washington, 541 U.S. 36, 51 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).
cited Cited as authority (rule) State v. Jackson
Minn. Ct. App. · 2009 · confidence medium
Id. at 310 (citing Shiver v. State, 900 So.2d 615, 618 (Fla.Dist.Ct.App.2005)).
discussed Cited as authority (rule) Sellers v. State
Fla. Dist. Ct. App. · 2007 · confidence medium
See Martin v. State, 936 So.2d 1190, 1192 (Fla. 1st DCA *545 2006) (holding that an FDLE report was inadmissible testimonial hearsay because "[t]he testing memorialized in the report was occasioned solely by the arrest of appellant and was performed by a state, law enforcement agency, and the report was offered by the State in furtherance of a criminal prosecution."); Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005) (holding an FDLE-ordered drug test was testimonial); Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006) (holding a breath test affidavit was testimonial because it was ordered by …
discussed Cited as authority (rule) State v. Campbell
N.D. · 2006 · confidence medium
See, e.g., United States v. Rahamin, 168 Fed.Appx. 512, 520 (3d Cir. 2006) (recognizing that a DEA laboratory report appeared to be a testimonial statement since it was offered to prove the weight and substance of ecstasy pills, but declining to decide the issue); Belvin v. State, 922 So.2d 1046, 1054 (Fla.Dist.Ct.App.2006) (breath test affidavit attesting to technician’s procedures and observations was testimonial and inadmissible under Crawford); Johnson v. State, 929 So.2d 4, 6 (Fla.Dist.Ct.App.2005) ("lab report prepared pursuant to police investigation and admitted to establish an eleme…
discussed Cited as authority (rule) Card v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
See also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006) (holding that breath-test affidavit written by technician who did not testify was testimonial hearsay because its purpose was clearly for use at trial); Shiver v. State, 900 So.2d 615, 618 (Fla. 1st DCA 2005) (concluding that breath-test affidavit was testimonial hearsay because "the only reason the affidavit was prepared was for admission at trial").
discussed Cited as authority (rule) Commonwealth v. Walther
Ky. · 2006 · signal: contra · confidence medium
Bohsancurt v. Eisenberg, 212 Ariz. 182 , 129 P.3d 471, 480 (Ct.App.2006); Rackoff v. State, 275 Ga.App. 737 , 621 S.E.2d 841, 845 (2005); Napier v. State, 827 N.E.2d 565, 569 (Ind.Ct.App.2005); State v. Carter, 326 Mont. 427 , 114 P.3d 1001, 1007 (2005); State v. Godshalk, 381 N.J.Super. 326 , 885 A.2d 969, 973 (Law Div.2005); Green v. DeMarco, 11 Misc.3d 451, 462-63 , 812 N.Y.S.2d 772 , 780-81 (N.Y.Sup.Ct.2005); State v. Norman, 203 Or.App. 1 , 125 P.3d 15, 18-19 (2005); Luginbyhl v. Commonwealth, 46 Va.App. 460 , 618 S.E.2d 347, 354-55 (2005); contra Shiver v. State, 900 So.2d 615, 618 (Fla.…
discussed Cited as authority (rule) Johnson v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
Likewise, in Shiver v. State, 900 So.2d 615, 618 (Fla. 1st DCA 2005), the First District concluded a breath-test affidavit was testimonial hearsay because "the only reason the affidavit was prepared was for admission at trial." See also People v. Rogers, 8 A.D.3d 888 , 780 N.Y.S.2d 393 (2004) (determining a private lab result requested by and prepared for law enforcement was both inadmissible as business record and testimonial hearsay violating Confrontation Clause because its purpose was to provide evidence against the defendant).
cited Cited as authority (rule) State v. Godshalk
N.J. Super. Ct. App. Div. · 2005 · confidence medium
Id. at 618-619.
discussed Cited "see" ANTHONY MOSCATIELLO v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2018 · signal: see · confidence high
See 13 Shivers v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (finding the erroneous admission of an affidavit was not harmless error where the State made it a feature of closing argument).
cited Cited "see" State v. Doss
Wis. · 2008 · signal: see · confidence high
See Shiver v. State, 900 So.2d 615 (Fla. App. 2005); United States v. Wittig, 2005 WL 122790 (D.
discussed Cited "see" State v. Caulfield (2×)
Minn. · 2006 · signal: see · confidence high
See Shiver v. State, 900 So.2d 615, 618 (Fla.Dist.Ct.App.2005) (finding that parts of affidavit related to maintenance of breathalyzer were testimonial because they were statements one would reasonably expect to be used prosecutorially and were made in circumstances that would lead an objective witness to reasonably believe the statements would be available for trial); People v. Lonsby, 268 Mich.App. 375 , 707 N.W.2d 610, 618 (2005) (holding that lab report on identification of evidence was testimonial and inadmissible), rev. denied (Mich. Mar. 27, 2006); People v. Rogers, 8 A.D.3d 888 , 780 N…
discussed Cited "see" Martin v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005) (holding that Crawford prohibited the admission of a state trooper's affidavit describing an alcohol breath test he performed).
cited Cited "see" Belvin v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005).
discussed Cited "see, e.g." Gonzalez v. State
Fla. Dist. Ct. App. · 2007 · signal: compare · confidence medium
Compare Johnson, 929 So.2d at 7 (determining that FDLE lab test "prepared pursuant to police investigation and admitted to establish an element of a crime is testimonial hearsay even if it is admitted as a business record" because "by its nature, it is intended to bear witness against an accused"), Belvin, 922 So.2d at 1051 (concluding that breath test affidavits are testimonial evidence in DUI case because they are admitted to prove critical element of crime), and Shiver v. State, 900 So.2d 615, 618 (Fla. 1st DCA 2005) (maintaining that section of breath test affidavit was testimonial because…
discussed Cited "see, e.g." Luginbyhl v. Commonwealth (2×)
Va. Ct. App. · 2006 · signal: see, e.g. · confidence medium
See, e.g., Shiver v. State, 900 So.2d 615, 618 (Fla.App.2005) (holding that a breath test affidavit "contained statements one would reasonably expect to be used prosecutorially,. . . was made under circumstances which would lead an objective witness to reasonably believe the statements would be available for trial," and was testimonial); City of Las Vegas v. Walsh, 120 Nev. 392 , 91 P.3d 591, 595 (2004) (holding that an affidavit "offered to prove certain facts concerning use of certain devices . . . related to determining presence of alcohol" is one prepared for use at trial and is testimonia…
discussed Cited "see, e.g." Luginbyhl v. Commonwealth (2×)
Va. Ct. App. · 2005 · signal: see, e.g. · confidence medium
See, e.g., Shiver v. State, 900 So.2d 615, 618 (Fla.App.2005) (holding that a breath test affidavit "contained statements one would reasonably expect to be used prosecutorially, . . . was made under circumstances which would lead an objective witness to reasonably believe the statements would be available for trial," and *360 was testimonial); City of Las Vegas v. Walsh, 120 Nev. 392 , 91 P.3d 591, 595 (2004) (holding that an affidavit "offered to prove certain facts concerning use of certain devices... related to determining presence of alcohol" is one prepared for use at trial and is testimo…
Retrieving the full opinion text from the archive…
Dennis SHIVER, Appellant,
v.
STATE of Florida, Appellee.
1D03-0636.
District Court of Appeal of Florida, First District.
Mar 8, 2005.
900 So. 2d 615
Hawkes.
Cited by 44 opinions  |  Published

[*616] Nancy A. Daniels, Public Defender and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Charles J. Crist, Jr., Attorney General, and Shasta Kruse, Assistant Attorney General, Tallahassee, for Appellee.

HAWKES, J.

Dennis Shiver (Appellant) appeals his conviction for felony driving under the influence, arguing admission of his breath test results, over objection, violated his constitutional right to confrontation as provided by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We agree and reverse.

During the jury trial, Trooper Elliott, the officer who arrested Appellant, testified Appellant failed four out of four sobriety tests he was given, and declined to take a fifth test because of hip and knee problems. Because Appellant failed the tests, and due to other observations the trooper made, Appellant was placed under[*617] arrest. Subsequently, the trooper administered two breath tests, which determined Appellant's blood alcohol level to be .151 and .132.

The State, over objection and relying on section 316.1934(5), Florida Statutes (2002), offered into evidence an affidavit that would serve as "presumptive proof" of the results of Appellant's breath test. This "breath test affidavit"[1] was prepared by the trooper. Between the trooper's testimony and the affidavit the jury learned: when the trooper administered the breath test, what type of instrument was used, the trooper was certified to operate the instrument, how the trooper operated the instrument, and when the trooper used the instrument on Appellant, it did not appear to be malfunctioning. Critical here, the affidavit was also relied upon by the State, pursuant to section 316.1934(5)(e), Florida Statutes (2002), to establish "the date of performance of the most recent required maintenance." If the State was unable to show the instrument had the statutorily required maintenance, the results of Appellant's test would be inadmissible.

When asked about the required maintenance, the trooper testified "[t]he only thing I know about that is the instrument has to be retested or whatever they do to it within a calendar month. So long as—if it's done within February, he has until the last day of March to go ahead and recheck the instrument." The trooper then testified Corporal Strickland, with the Florida Highway Patrol, oversees the maintenance of the instrument.

Defense counsel again renewed his objection to introduction of the breath test results on grounds that the State failed to prove the instrument was properly calibrated, and admission of such unreliable evidence violated Appellant's due process rights. The trial court again overruled the objection. By admitting this evidence, the trial court erred.

The ultimate goal of the Confrontation Clause is to ensure reliability of evidence. See Crawford, 124 S.Ct. at 1370. This is "a procedural rather than a substantive guarantee" and "commands, not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." See id. A defendant's right to confront and cross-examine witnesses applies to those who bear testimony against him. See id. at 1364. "Testimony, . . . is typically a solemn declaration or affirmation made for purposes of establishing or proving some fact." Id. "Testimonial" statements include

ex-parte in-court testimony, or its functional equivalent—that is, material such as affidavits, that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially. . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, . . . [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Id. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 1374. The[*618] Confrontation Clause "demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. Consequently, the testimonial statements of witnesses absent from trial may only be admitted if the declarant is unavailable, and the defendant had a prior opportunity to cross-examine.[2]See id. at 1369.

Here, parts of the "breath test affidavit" constitute testimonial hearsay evidence. It contained statements one would reasonably expect to be used prosecutorially, and was made under circumstances which would lead an objective witness to reasonably believe the statements would be available for trial. In fact, the only reason the affidavit was prepared was for admission at trial. Specifically, the affidavit contained testimonial evidence regarding when the statutorily required maintenance of the instrument was performed. This information was crucial, because the admissibility of Appellant's breath test results were dependent upon the instrument having met the statutory requirements which, in turn, was dependent upon timely and proper maintenance.

Since the trooper did not perform the required maintenance, he was not qualified to testify as to whether the instrument met the required statutory predicates. Because Appellant was unable to challenge the accuracy of the instrument by the constitutionally mandated method of cross-examination of the person who performed the maintenance, introduction of the affidavit violated Appellant's right to confront witnesses.

Contrary to the State's argument, the fact that the trooper testified and was subject to cross-examination did not cure the Confrontation Clause violation. The trooper was simply attesting to someone else's assertion that the breathalyzer had been timely and properly maintained before being used on Appellant.[3]

The trial court's error in admitting the affidavit was not harmless for at least three reasons: (1) The State made the accuracy of the instrument and test results the feature of its closing argument; (2) The State argued that, due to the breathalyzer test results, whether Appellant was actually impaired was irrelevant; and (3) The jury was instructed that if the State proved beyond a reasonable doubt that Appellant had a blood alcohol level of .08 or more, that alone would be sufficient to prove the DUI charge. The only evidence of Appellant's blood alcohol level came in through the erroneously admitted breath test affidavit. Accordingly, it cannot be concluded, beyond a reasonable doubt, that the error did not have any effect on the verdict. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Appellant's conviction for DUI is REVERSED and the case REMANDED for a new trial.

Additionally, Appellant was charged with and convicted of second degree[*619] misdemeanor driving while license suspended. However, the trial court adjudicated and sentenced Appellant for first degree misdemeanor driving while license suspended. Because the trial court committed fundamental error by adjudicating and sentencing Appellant for a crime with which he was not charged, the conviction and sentence for first degree misdemeanor driving while license suspended is REVERSED, and the case REMANDED for resentencing for second degree misdemeanor driving while license suspended.

REVERSED and REMANDED for proceedings consistent with this opinion.

WEBSTER, and PADOVANO, JJ., concur.

1 The State acknowledges this was not a true affidavit. It contained some information about which the trooper had personal knowledge, and some information that was solely hearsay. The hearsay information was used to show that the statutorily required maintenance had been performed.
2 We note the State failed to show Corporal Strickland was unavailable, and if unavailable, that a constitutionally acceptable excuse for the unavailability existed, as required by Crawford.
3 Interestingly, this is the precise scenario the United States Supreme Court used to exemplify a Confrontation Clause violation. The Supreme Court discussed Sir Walter Raleigh's trial for treason, wherein an alleged co-conspirator's affidavit was read in court as evidence against Raleigh. Raleigh contested the allegations and demanded an opportunity to confront the attestor, face-to-face, which was denied. The Supreme Court stated that "[l]eaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court." Crawford, 124 S.Ct. at 1364.