Opinion
No. 77213.
September 26, 1991.
Application for Review of the Decision of the District Court of Appeal — Certified Great Public Importance; Third District — Case No. 90-164 (Dade County).
Bennett H. Brummer, Public Defender and Robert Burke, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
Robert A. Butterworth, Atty. Gen. and Jorge Espinosa, Asst. Atty. Gen., Miami, for respondent.
We review Gallagher v. State, 570 So.2d 442 (Fla. 3d DCA 1990), in which the district court certified the following question of great public importance:
The district court certified "the same question of great public importance certified in [ State v.] Miller [, 555 So.2d 391, 394 (Fla. 3d DCA 1989), approved in part, quashed in part, 597 So.2d 767 (Fla. 1991)]." We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.
Whether the numerical result of the blood alcohol test taken . . . after the defendant's last operation of a motor vehicle is admissible evidence where the state's expert witness would testify that the numerical reading would not be the [blood alcohol level (BAL)] at the time the defendant was operating the vehicle, where that witness was unable to testify what the defendant's BAL was at the time he was operating the vehicle, and where the witness testified that the BAL could have been lower than .10% at the time the defendant operated the vehicle.State v. Miller, 555 So.2d 391, 392 (Fla. 3d DCA 1989).
The district court relied in part on Miller, which we recently approved in part and quashed in part. Miller v. State, 597 So.2d 767 (Fla. 1991). Accordingly, we vacate the judgment below and remand for reconsideration in light of our opinion in Miller. We do not address the additional issues raised in the petitioner's brief.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, GRIMES, KOGAN and HARDING, JJ., concur.