vs.                                                                   Appeal No. CRC 99-22912 CFANO




Opinion filed _____________________.

Appeal from Denial of Motion to Suppress
Pinellas County Court
County Judge Michael F. Andrews

David R. Gemmer, Esq.
Attorney for Appellant

Donny Kilfin, Esq.
Assistant State Attorney
Attorney for Appellee



            THIS MATTER is before the court on the defendant’s appeal from the trial court’s denial of the defendant’s motion to suppress.  After reviewing the briefs and record, this court affirms the trial court’s decision.

“Appellate review of a motion to suppress involves questions of both law and fact and appellate court must make a de novo review of the trial court's application of the law to the facts.”  Rosenquist v. State, 2000 WL 966039 (Fla. 2d DCA 2000).  Furthermore, “a ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.”  Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978). 

On December 4, 1998, at approximately 10:15 p.m. Officer Alan Rothberg of the Largo Police Department was dispatched to investigate a traffic accident in the area of Seminole Boulevard and Largo Drive in Largo.  Officer Donald Jamal, also with the Largo Police Department, who happened upon the scene without being dispatched, was the first to arrive, and initiated the accident investigation.  After speaking briefly with the victims, who advised that they were injured and unable to exit their vehicle, Officer Jamal summoned fire rescue.  Officer Jamal then approached the defendant who had just exited his vehicle and taken a seat on a nearby bench.  Officer Jamal asked the defendant if he was injured and in need of medical assistance.  The defendant replied “I want to go to the hospital”.   The officer noted an odor of alcoholic beverages on the defendant’s breath, his eyes appeared glassy and red and his speech was slurred. 

Officer Rothberg arrived approximately five minutes after Officer Jamal.  Upon his arrival, Officer Jamal asked Officer Rothberg to make an impairment assessment of the defendant.  Officer Rothberg approached the defendant and, as part of the accident investigation, asked the defendant to explain what had happened.  After noticing that the defendant was emanating a strong odor of alcohol, had bloodshot watery eyes, and appeared “lethargic”, Officer Rothberg read the defendant his Miranda rights and initiated a criminal investigation.  During the time between the conclusion of Officer Rothberg’s accident investigation and the initiation of his criminal investigation, the defendant was immobilized in a stretcher with a neck brace restraining his head by fire department personnel and moved by paramedics to the back of an ambulance. Officer Rothberg testified that he sought a forensic blood draw because he believed the defendant could not safely be given field sobriety tests at the scene or be safely transported to give a breath test.  As the defendant lay immobilized in the ambulance, Officer Rothberg read the defendant implied consent from a prepared card and asked him if he would submit to a blood test.  Officer Rothberg explained implied consent to the defendant by “breaking it down sentence or phrase by phrase”.  Paramedic David Parady testified that he was present when Officer Rothberg read implied consent, heard the officer read implied consent, and then heard the defendant give his consent to have the blood sample extracted.

After being charged with careless driving and driving under the influence causing injury to another, the defendant filed a motion to suppress the blood test results.  At the hearing on the motion, the defendant argued that this evidence should not have been admitted because the defendant was not properly advised of his rights under Florida’s implied consent laws, and it was both possible and practical to conduct a breath or urine test to determine the alcohol content of the defendant’s blood.    

The trial court, in denying defendant’s motion, found that implied consent was given and that a breath test was impracticable or impossible.

On appeal, the defendant argues that the evidence failed to establish adequate consent or that a breath or urine test was impractical or impossible under Section 316.1932 (1)(c).  Defendant claims that there is insufficient evidence to show that he received adequate notice of his rights because neither the officer nor the paramedic could recall precisely what was told him to get his consent.  Officer Rothberg could not recall precisely what he told defendant prior to the blood draw because he read implied consent specifically from an SAO card and he did not have this card with him at the motion hearing.  Officer Rothberg also testified that he broke the law down “phrase by phrase” and that the defendant told him he understood and consented to giving the blood sample.  Paramedic David Parady also testified that he was present when the officer read implied consent, heard the officer read implied consent, and then heard the defendant give his consent to have the blood sample extracted.  We therefore find that there is sufficient evidence to show the defendant received adequate notice of his implied consent rights.

Furthermore, the defendant’s argument that there was no indication that a breath test was impossible or impractical is inconsistent with the testimony adduced at the hearing.  When Officer Jamal approached the defendant, the defendant immediately requested to be taken to a hospital.  When Officer Rothberg read the defendant implied consent warnings the defendant was on a stretcher in the back of an ambulance with his head restrained.  Although Officer Rothberg could not recall whether the defendant was attached to an inter venous line at that point, Paramedic David Parady testified that this was in fact the case. Officer Rothberg also consulted with the ambulance personnel before making the decision to extract a sample of the defendant’s blood and was told that the defendant needed to be transported to a hospital for medical treatment. Officer Rothberg felt that to do otherwise would have subjected the defendant to further injury.  To give the defendant a breath test, the defendant would have had to be transported to the Largo Police Department and removed from his immobilized position.  Clearly, to do so would be highly impractical if not impossible.

We, therefore, find that the trial court correctly determined that there was sufficient evidence to show that implied consent warnings were properly given to the defendant and that to give the defendant a breath or urine test was impossible or impractical under the circumstances.  It is therefore

ORDERED AND ADJUDGED that the trial court’s denial of defendant’s motion to suppress is affirmed.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 25th day of January 2001.


Circuit Judge
Primary Appellate Judge


Circuit Judge


Circuit Judge


Copies furnished to:

The Honorable Michael F. Andrews

David R. Gemmer, Esq.
2701 5th Avenue North
St. Petersburg, Florida 33713

Donny Kilfin, Esq.
Assistant State Attorney
14250 49th Street North
Clearwater, Florida 33762