State v. Derzhanko

Florida Circuit Courts

State v. Derzhanko

10 Fla. Supp. 2d 107

CourtCircuit Court for the Judicial Circuits of Florida

DecidedApril 2, 1985

DocketCase No. 84-084-AC

StatusPublished

This text of 10 Fla. Supp. 2d 107 (State v. Derzhanko) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Derzhanko, 10 Fla. Supp. 2d 107 (Fla. Super. Ct. 1985).

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Opinion

OPINION OF THE COURT

SALMON, J.

For the purpose of deciding this appeal, the facts of the case are simple: an officer who had probable cause to believe that the appellee was driving an automobile while under the influence of alcohol not only arrested him, but being qualified to do so, administered a breathalyzer test to the appellee. The trial court accepted the appellee’s contention that an arresting officer may not also administer a breathalyzer test. Two reasons are suggested by appellee. The first is that section 316.1932, Florida Statutes (1983) prohibits an officer from performing both acts, because the statute directs that the test is incidental to the arrest and shall be administered at the request of an officer. The second reason is that if the same officer is permitted to both arrest and test the appellee, the appellee’s due process rights would be violated, because such action violates fundamental fairness.

The question was raised by a motion to dismiss, stipulated to be a motion to suppress, which was granted, resulting in suppression of the test.

. We have concluded that the language of the statute does not prohibit an arresting officer who possesses the qualifications to do so from administering the test, and that the failure of the statute to require separate persons to perform those acts does not, as a matter of law, violate the appellee’s right to due process of law.

Reversed and remanded for further proceedings not inconsistent with this opinion.

BARAD and FEDER, concur.

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OPINION OF THE COURT

SALMON, J.

For the purpose of deciding this appeal, the facts of the case are simple: an officer who had probable cause to believe that the appellee was driving an automobile while under the influence of alcohol not only arrested him, but being qualified to do so, administered a breathalyzer test to the appellee. The trial court accepted the appellee’s contention that an arresting officer may not also administer a breathalyzer test. Two reasons are suggested by appellee. The first is that section 316.1932, Florida Statutes (1983) prohibits an officer from performing both acts, because the statute directs that the test is incidental to the arrest and shall be administered at the request of an officer. The second reason is that if the same officer is permitted to both arrest and test the appellee, the appellee’s due process rights would be violated, because such action violates fundamental fairness.

The question was raised by a motion to dismiss, stipulated to be a motion to suppress, which was granted, resulting in suppression of the test.

. We have concluded that the language of the statute does not prohibit an arresting officer who possesses the qualifications to do so from administering the test, and that the failure of the statute to require separate persons to perform those acts does not, as a matter of law, violate the appellee’s right to due process of law.

Reversed and remanded for further proceedings not inconsistent with this opinion.

BARAD and FEDER, concur.

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Bluebook (online)

10 Fla. Supp. 2d 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-derzhanko-flacirct-1985.