IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION
CHRISTOPHER F. STOLZ,
Appellant,
vs.
Appeal No. CRC 00-15073
CFANO
STATE OF FLORIDA,
Appellee.
_________________________________/
Appeal
from Denial of Motion to Suppress
Pinellas
County Court
County Judge William H. Overton
David R. Gemmer, Esq.
Attorney for Appellant
Chris DeBari, 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). When reviewing trial judge's factual findings, appellate court must determine whether competent, substantial evidence supports ruling. Vargas v. State, 737 So.2d 1206 (Fla. 2d DCA 1999). 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 January 5, 1999, the defendant was the driver of vehicle involved in a
traffic accident in Pinellas County. As a result of the accident, the defendant
and the driver and passenger of the other vehicle were taken to Bayfront Medical
Center. Deputy Michael Anthony, with the Pinellas County Sheriff’s Office,
assigned to the selective traffic enforcement program and the DUI squad, was
dispatched to investigate the crash. Deputy Anthony initially proceeded to
the crash site, which was on the way to the hospital from his location, even
though the defendant and the driver and passenger of the other vehicle had
already been taken to the hospital. At the hearing on the defendant’s motion
Deputy Anthony testified that while examining the defendant’s vehicle he detected
a distinct odor of alcoholic beverage inside.
Upon arriving at the hospital, Deputy Anthony attempted to ascertain the extent
of the injuries suffered by the three parties involved. Deputy Anthony was
first told by hospital staff that the defendant and the occupants of the other
vehicle had not been diagnosed and were still being X-rayed, and that the
defendant appeared to be the most seriously injured. Later, an individual
attending to the defendant, whom the deputy assumed to be a male nurse, indicated
concern that the defendant suffered possible head or spinal injury requiring
a CAT scan and a consult by a neurologist.
When
Deputy Anthony observed the defendant he was wearing a neck brace and bleeding
profusely from what appeared to the officer to be a very severe laceration
on his forehead. The defendant appeared
groggy, had slurred and mumbled speech, bloodshot, watery eyes, and a very
distinct odor of alcoholic beverage on his breath. The defendant also told the deputy that he had been drinking earlier
that evening.
Deputy Anthony was also advised by hospital nursing staff that although the
passenger in the other vehicle did not have serious injuries, doctors believed
the driver of the other vehicle had at least a possible broken clavicle.
Although disputed by the defendant, the deputy further testified that he advised
the defendant that the crash investigation was completed and that the deputy
was doing a DUI investigation based upon the deputy’s observations. The deputy
further stated that he informed the defendant it was necessary to draw the
defendant’s blood to determine his blood alcohol content, and that the defendant
said that was not a problem and allowed his blood to be drawn. Deputy Anthony
stated that he did not read the defendant the implied consent notice because
the defendant consented to the draw.
Based on the information from the hospital nursing staff that the defendant
was being examined for a possible head or spinal injury, that the driver of
the other vehicle had a possible broken clavicle, and having observed the
defendant bleeding profusely from a forehead laceration in a neck brace immobilized
on a backboard, with a distinct odor of alcohol on his breath, slurred and
mumbled speech, watery, bloodshot eyes, and having admitted to drinking earlier
that night, the deputy requested blood be drawn from the defendant because
he believed the defendant to be DUI and felt he had no other choice but to
have blood drawn.
After
being charged with DUI, the defendant filed a motion to suppress the blood
test. Subsequent to the hearing, the
trial judge denied the motion finding that the blood draw was justified because
“there was ‘sufficient trustworthy information’ to cause the officer to believe
that there was a substantial risk that the defendant had serious bodily injury
as required by Sec. 316.1933(1) Florida Statutes.”
The
defendant argues three issues on appeal.
First, defendant argues that the blood draw was taken without sufficient
notice as required when there is alleged serious bodily injury.
The statutory language of Sec. 316.1933(1) Fla. Stat. (1999) is as follows:
Notwithstanding any recognized ability to
refuse to submit to the tests provided in s. 316.1932 or any recognized power
to revoke the implied consent to such tests, if a law enforcement officer
has probable cause to believe that a motor vehicle driven by or in the actual
physical control of a person under the influence of alcoholic beverages, any
chemical substances, or any controlled substances has caused the death or
serious bodily injury of a human being, such person shall submit, upon the
request of a law enforcement officer, to a test of the person’s blood for
the purpose of determining the alcoholic content thereof or the presence of
chemical substances as set forth in s. 877.111 or any substance controlled
under chapter 893. The law enforcement
officer may use reasonable force if necessary to require such person to submit
to the administration of the blood test.
The blood test shall be performed in a reasonable manner. The term “serious bodily injury” means an injury
to any person, including the driver, which consists of a physical condition
that creates a substantial risk of death, serious personal disfigurement,
or protracted loss or impairment of the function of any bodily member or organ.
Contrary to the defendant’s
argument, the statute does not contain a specific “sufficient notice” requirement.
Furthermore, the defendant fails to cite and our research was unable
to find case or statutory law that supports the defendant’s argument that
“sufficient notice” is required when there is alleged serious bodily injury.
The language of Sec. 316.1933(1)
states that upon the “request” of the officer a person “shall submit” to a
test of their blood. Deputy Anthony
testified that during his conversation with the defendant, he told him he
would be taking blood to determine his blood alcohol content, and that the
defendant agreed and in the same breath said that earlier he had a couple
of drinks. The deputy was also present
in the room when the lab technician performed the blood draw.
The defendant testified that while being treated at the hospital, Deputy Anthony
asked him about the accident, and that he knew Deputy Anthony was an officer.
However, the defendant also testified that he did not remember discussing
the blood draw with Deputy Anthony.
The Florida Supreme Court has
explained the "presumption of correctness" of a trial court’s ruling
as follows: “For the most part, the presumption of correctness arises from
the fact that the trial court's opportunity to observe the attitude, demeanor
and responses of witnesses gives to that court the greater ability to assess
credibility and from that decide the facts. West Shore Restaurant Corp.
v. Turk, 101 So.2d 123 (Fla. 1958).
In the instance
case, the trial court, having had the opportunity to observe the witnesses,
evidently found Deputy Anthony’s testimony that he requested a blood draw
from the defendant more credible than the defendant’s testimony that the deputy
did not make the request. We find
nothing in the record to dispel that conclusion.
Essentially, both the statute and the request equate “sufficient notice”,
although such language is not found in the statute. Publication in the Laws
of Florida or the Florida Statutes gives all citizens constructive notice
of the consequences of their actions. State v. Beasley, 580 So.2d 139, 142 (Fla. 1991).
We, therefore, find the defendant’s argument on this issue without merit.
The second issue raised by the defendant in his appeal is that the circumstances
provided no basis for a compelled blood draw.
The trial court found that
Deputy Anthony made a valid blood draw of the defendant’s blood pursuant to
Sec. 316.1933(1) Fla. Stat. because there was probable cause to believe that
serious bodily injury resulted from the accident. "Probable cause exists under section 316.1933(1) to order a
blood test if the officer, based upon reasonably trustworthy information,
has knowledge of facts and circumstances sufficient to cause a person of reasonable
caution to believe that the suspect driver was under the influence of alcoholic
beverages at the time of the accident and caused the death or serious bodily
injury of a human being." State v. Buchanon, 610 So.2d 467 (Fla.
2d DCA 1992). Probable cause must
be based on objective facts and circumstances, not on personal opinions or
suspicions. See, Brown v. State, 330 So.2d 861 (Fla. 4th DCA 1976). To establish probable cause to order a blood
test under Sec. 316.1933(1) Fla. Stat., an officer may properly rely on information
provided at the scene by other law enforcement agents or emergency personnel.
Carbone v. State, 564 So.2d 1253 (Fla. 4th DCA 1990).
In Gerlitz v. State, 725 So.2d 393 (Fla. 4th DCA 1999), the
Court found that a police officer had probable cause to order a blood test
to be drawn from the driver of a truck that had been involved in an accident
with a cyclist. The officer, upon arriving at the scene, observed that the
truck had struck a bicyclist, the bicyclist had been thrown to the ground
and had to be removed for medical care, the officer who ordered the blood
draw was told by fellow officers that the bicyclist was in serious condition
and that the injury was possibly severe, and the officer smelled alcoholic
beverages on the driver’s breath and person.
In the instant case, Deputy Anthony based his belief of probable cause to
order a blood test pursuant to Sec. 316.1933(1) on his experience as a DUI
investigator and the totality of the facts and circumstances of the case,
which were as follows:
· the defendant’s lacerated forehead bleeding profusely as observed by the deputy,
· the odor of alcohol in the defendant’s car,
· the distinct odor of alcohol on the defendant’s breath,
· the manner in which the accident occurred,
· the defendant’s own admissions to having a couple of drinks, and
· information from hospital staff attending to the defendant that the defendant had the most serious injuries of all the parties involved and needed to be examined by a neurologist for possible head and spinal injuries.
There is an even greater case for finding probable cause for a blood draw in the instant case than in Gerlitz because Deputy Anthony was advised of the defendant’s condition by trained hospital personnel attending to the defendant rather than by fellow officers who were at the scene in Gerlitz who advised the officer of the bicyclist’s condition. We, therefore, agree with the trial court that the blood draw was justified because there was sufficient trustworthy information to cause Deputy Anthony to believe that there was a substantial risk that the defendant had serious bodily injury as required by Sec. 316.1933(1). Fla. Stat. (1999).
The defendant’s third issue on appeal is “there is no alternative basis for
finding the blood draw valid.” As this Court has found the blood draw valid
pursuant to Sec. 316.1933(1), this defendant’s third issue on appeal is moot.
We,
therefore, find that the trial court correctly determined that the blood draw
was proper pursuant to Sec. 316.1933(1) Fla. Stat. (1999) and that the defendant’s
motion was properly denied.
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 9th day of January,
2002.
|
__________________________ NANCY MOATE LEY Circuit Judge
___________________________ W. DOUGLAS BAIRD Circuit Judge
___________________________ R. TIMOTHY PETERS Circuit Judge |
Copies
furnished to:
The
Honorable William H. Overton
David
R. Gemmer, Esq.
2701
5th Avenue North
St.
Petersburg, Florida 33713
Chris
DeBari, Esq.
Assistant State Attorney