
    STATE OF FLORIDA v. EVERETT
    Case No. 83-17761/3/4-KS
    County Court, Brevard County
    April 10, 1984
    State Attorney’s Office, for plaintiff.
    Lane Vaughn, for defendant.
   MARTIN BUDNICK, County Judge.

This cause came on to be heard on Defendant’s Motion to Suppress breathalyzer reading obtained on a Smith and Wesson Model 900A. The Court having had the benefit of expert testimony presented by Dr. James Feldman, together with argument of counsel and brief as presented, finds as follows:

1. The uncontroverted testimony of Dr. Feldman is that the Smith and Wesson Model 900A is susceptible to RFI (radio frequency interference) error, and is therefore unreliable. Since such great reliance is placed by the Court and Jury on the results of the breathalyzer test, all care should be taken to ensure its accuracy without creating undue hardship upon the State or the Defendant.

2. This Court holds that the breathalyzer results will be suppressed unless the State’s evidence establishes:

(a) That the unit has been “cured” by being properly shielded as suggested by Dr. Jensen, or by some other available means (cost estimated at less than $100),
or
(b) That two breathalyzer tests were administered within close proximity (5 to 20 minutes) to ensure accuracy,
or
(c) That the Defendant’s breath sample was effectively preserved at the time of testing, and made available to the Defendant at that time.

In addition to the above requirements, it shall be the State’s burden to establish the following:

(a) The Defendant did not regurgitate (burp) within the twenty minutes preceding the test.
(b) The ampul was gauged after opening to assure proper volume (rather than gauged and then opened and possibly spilled).
(c) The breathalyzer unit was properly operated pursuant to existing rules and procedures established by the State and the manufacturer.

3. This Court does NOT hold at this time that:

(a) Preservation of the breath sample is required.
(b) Any other breath testing device is subject to RFI error.
(c) All Smith and Wesson 900A machines are inaccurate due to RFI; only that they are in fact susceptible to such error, and are therefore unreliable.

4. The Defendant’s Motion to Suppress the breathalyzer is therefore granted.  