
    FEELEY v STATE OF FLORIDA
    Case No. 85-0025 AC 10
    Seventeenth Judicial Circuit, Broward County
    September 25, 1985
    APPEARANCES OF COUNSEL
    Anthony M. Livoti for appellant.
    Michael J. Satz, State Attorney, and James P. McLane, Assistant State Attorney, for appellee.
   OPINION OF THE COURT

ROBERT W. TYSON, JR., Circuit Judge.

Appellant was convicted of driving while under the influence of an alcoholic beverage. He appeals the judgment and sentence imposed thereon and contends that the trial court erred in denying his motion in limine, which sought to preclude the State from using a breathalyzer test result at trial, on the ground that he had only been given one breath test and the H.R.S. rules at the time of trial required two breathalyzer tests.

This Court finds that the trial court properly denied Appellant’s motion in limine, rejecting Appellant’s argument that the H.R.S. rules adopted subsequent to his arrest should be applied retroactively to his case, relying on the State Supreme Court case of Drury v. Harding, 461 So.2d 104 (Fla. 1984). There, the Court would not even consider retroactive application of H.R.S. rules where, as here, there were already H.R.S. rules “. . . in effect during the period of petitioners’ arrests.” Id. at 108. (emphasis added). The Court therefore quashed that portion of the First District Court of Appeal’s opinion in Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983), relied upon by Appellant, relating to the retroactive application of the H.R.S. rules there in questioned. Id.

This Court further holds, as the rules at the time of Appellant’s arrest did not require two breath tests, it would impose an unreasonable burden on the State to go back and apply the new rules, which did not become effective until after Appellant’s arrest, See, Witt v. State, 387 So. 2d 922, 926 (Fla. 1980), and it would lead to an unreasonable conclusion contrary to the obvious intent of the legislature. See, Dorsey v. State, 402 So.2d 1178, 1183 (Fla. 1981) and In the Interest of D.F.P., 345 So. 2d 811, 812 (Fla. 4th DCA 1977).

In view of the foregoing, the judgment and sentence appealed from are AFFIRMED.

DONE AND ORDERED in Chambers, at the Broward County Courthouse, 201 Southeast Sixth Street, Fort Lauderdale, Broward County, Florida 33301, this 25th day of September, 1985.  