IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
 IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

ERIC F. BASSO,

            Petitioner,

vs.                                                                                            Appeal No. 01-3009-CI-88A

STATE OF FLORIDA DEPT. OF HIGHWAY SAFETY & MOTOR VEHICLES,

            Respondent

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ORDER DENYING PETITION FOR CERTIORARI

                Upon consideration of the Petition for a Writ of Certiorari and the Response thereto, the Court finds that the Petitioner has raised three issues. 

            The first issue is whether the arresting law enforcement officer had probable cause to believe that the Petitioner was driving or in actual physical control of the motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.  On January 1, 2001, at approximately 12:02 a.m. at 1388 Nursery Road, Clearwater, Florida, the Petitioner crashed his motorcycle and was taken to Bayfront Medical.  Officer William D. Smith (Smith) was dispatched to the Bayfront Medical Center in reference to the accident investigation.  In Officer Smith's case Report he stated the following facts: When Officer Smith interviewed the Petitioner, Officer Smith observed a strong odor of alcohol on Petitioner's breath, that Petitioner's speech was slurred, and that Petitioner's eyes were glassy and bloodshot.  Officer Smith asked the Petitioner about the accident, and Petitioner said, "I was just going to start it up and make some noise."  Officer Smith then told the Petitioner that the accident investigation was concluded and that he was starting the criminal investigation.  Officer Smith read the Petitioner the Miranda warning from the State Attorney Card twice, and Petitioner stated that he did not understand, so Officer Smith read the card line by line.  After each line, Officer Smith asked Petitioner if he understood, and Petitioner said, "Yes."  Officer Smith paused to give Petitioner's wife an opportunity to speak to her husband.  Petitioner then asked his wife, "Is that cop still around?" Officer Smith explained to Petitioner's wife that she could stay but she must not interfere with the investigation.  Officer Smith read Petitioner the implied consent information again, and Petitioner stated that he did not understand implied consent.  Officer Smith explained that because Petitioner was operating a motor vehicle in the State of Florida and Officer Smith believed that he had been under the influence of alcoholic beverages, Officer Smith was requesting a blood sample.  Officer Smith explained that refusal to give the blood sample would result in a twelve to eighteen-month suspension of his driver's license and that the refusal could be used against him in court.  Petitioner stated that he understood what Officer Smith told him, and he did not want to give a blood sample.  Officer Smith explained to Petitioner that he could change his mind before Officer Smith left the hospital, but that Officer Smith did not want the decision to be made by Petitioner's wife.  Officer Smith stood by to give the Petitioner time to consider his decision and then departed. 

            Officer Smith interviewed Scott Atkinson, Matthew Virag, and Petitioner's wife, Malia Basso.  Petitioner's wife was inside the house and she stated that she did not know that the Petitioner had taken the motorcycle out.

            Scott Atkinson told Officer Smith that he had been at Petitioner's house for approximately two hours and that he, himself, drank two beers, but he did not know how much the Petitioner drank.  Mr. Atkinson said that he thought that Petitioner was just going to take the motorcycle out and make some noise.  Mr. Atkinson stated that Petitioner drove the motorcycle five or six houses east and turned around and headed west.  Mr. Atkinson stated that the Petitioner passed the house at approximately fifty to sixty miles per hour, and he knew that the Petitioner crashed.  Mr. Atkinson got into his truck and drove to the accident location.

            Matthew Virag told Officer Smith that he had been at Petitioner's house since five o'clock.  Mr. Virag stated that the Petitioner drove the motorcycle five to eight houses east and then did a U-turn.  Petitioner drove west past the house at seventy-five to eighty miles per hour.  Approximately three houses west of Petitioner's house, Petitioner appeared to lose control of the motorcycle.  Petitioner went out of sight and Mr. Virag headed that way on foot.  He heard a "crunch."

            Based on the information that Officer Smith had at the time of the arrest, he had probable cause to believe that the Petitioner was driving or in actual physical control of the motor vehicle in this state while under the influence of alcoholic beverages.

            The Petitioner argues that statements made by the Petitioner's wife and by Scott Atkinson and Matthew Virag should not have been admitted because they were contained in Officer Smith's accident report.  Petitioner argued, "The accident report privilege precludes the admission of information contained in a police report if the information is based on statements made to the investigating officer by witnesses and persons involved in the accident," and cited several cases as authority.  That is a correct statement of the law.  However, Petitioner's wife, Scott Atkinson and Matthew Virag were not "involved in the accident."  While the Petitioner's statements during the accident investigation are not admissible, the statements of Petitioner's wife, Scott Atkinson and Matthew Virag are admissible.

            The second issue is whether the Petitioner was placed under lawful arrest for violation of Section 316.1931, Florida Statutes.  The evidence shows that the Petitioner was placed under lawful arrest. 

            The third issue is whether the Petitioner refused to submit to a breath, urine, or blood test.  Petitioner argues that he lacked the capacity to refuse the blood test.  Since the Petitioner was the one claiming that he lacked capacity to refuse the blood test, the Petitioner had the burden of proof.  Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Zeltins, 614 A. 2d 349 (1992).  The record does not support Petitioner's conclusion.  The Case Report shows that Petitioner supplied general information to Officer Smith, but when Officer Smith asked for Petitioner's social security number, Petitioner stated that he did not want to talk any more.  Petitioner was then taken for a C.A.T. scan.  When Petitioner came back from getting the C.A.T. scan, Officer Smith concluded the accident investigation and told Petitioner that he was starting the criminal investigation.  The evidence shows that Petitioner was not heavily sedated, although he may have been in pain.  Petitioner was hooked up to an IV, but the painkiller was not administered until Petitioner requested it during the reading and explanation of implied consent.  Petitioner's wife stated that she did not believe that her husband understood any of the conversation with Officer Smith, but that her husband was being polite because he knew he was being talked to.  Moreover, Petitioner was articulate.  During the last reading and explanation, Officer Smith told the Petitioner that Officer Smith was requesting a blood sample.  Petitioner said, "No." 

            The unsigned letter from Kimberly J. Horton-Bender, shows that she first saw the Petitioner on January 3, 2001, not at the time of the reading of implied consent.  She stated that Petitioner had short-term memory loss, and that his cognitive ability was compromised, but she did not say that Petitioner was incapable of refusing the blood test.  It is, therefore,

            ORDERED that the Petition for a Writ of Certiorari is denied.

            DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida, on this 1st day of August 2001.

___________________________
NANCY MOATE LEY
Circuit Judge, Appellate Division

 

Copies Furnished To:

J. Kevin Hayslett, Esquire
Suite 102
250 North Belcher Road
Clearwater, FL 34625
Attorney for Petitioner

Kathy A. Jimenez, Esquire
Assistant General Counsel
Dept. of Hwy. Safety & Motor Vehicles
2515 West Flagler Street
Miami, FL 33135
Attorney for Respondent