State v. Remai

OPINION OF THE COURT

Appellee, MIKEAL J. REMAI, was arrested and charged with *190driving under the influence and failing to drive within a single lane. Breath samples were taken using an Indium Crimper. The criminalist tested the first sample and obtained a reading of .06. He tested the second sample and obtained a reading of .14. Having two inconsistent readings, the criminalist decided to test the third sample, which he did and obtained a result of .14.

Appellee moved to suppress the evidence arguing he was denied the opportunity to test the third sample. The trial Court agreed with Appellee and suppressed the sample because of the discrepancy in the results.

The State contends the trial Court erred in granting the Motion to Suppress in that any disparity in the sampling goes to the weight and credibility of the evidence, not it’s admissibility. The State’s position is correct. Behm v. Division of Transportation, 336 So.2d 579 (Fla. 1976). Accordingly, the Order entered by the trial Court suppressing the evidence be and the same is hereby reversed and the matter is remanded to the lower Court with instructions to proceed to trial.

Reversed and remanded with instructions.