vs.                                                                   Appeal No. CRC 00-15073 CFANO





Opinion filed January 9, 2002.


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.





Circuit Judge
Primary Appellate Judge





Circuit Judge





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