IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
Appeal No. CRC 03-27 APANO
Opinion filed _________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Dorothy Vaccaro
J. Kevin Hayslett, Esq.
Attorney for appellant
C. Marie King, Esq.
Assistant State Attorney
THIS MATTER is before the Court on Timothy Goewey’s appeal from a judgment and sentence entered by the Pinellas County Court. The appellant entered a plea of no contest to the charge of DUI. He reserved his right to appeal the trial court’s decision to deny his motion to suppress. After reviewing the briefs and record, this Court affirms the decision of the trial court.
The defendant is appealing the trial court’s decision to deny his motion to suppress the results of a blood test. The defendant was involved in a one-car traffic accident and was transported to the hospital. The investigating officer suspected DUI, but believed a breath or urine test would be impractical because of the defendant’s circumstances. The officer asked the defendant to submit to a voluntary blood draw. It appears that at first the defendant refused. But, after listening to his girlfriend’s pleas to take the test --- after the girlfriend had talked to someone on the phone --- he agreed to take the blood test. The defendant claims, however, that his consent was coerced because of improper statements made by the officer.
The defendant claims that the officer told him that if he did not take the blood test he would lose his driver’s license. The officer denied making that statement. The order denying the motion to suppress makes it clear that the trial judge chose to select the officer’s testimony on the driver’s license issue. When the testimony is in conflict, the trial judge is free to determine which version to accept and which to reject. See e.g., Ringling v. State, 678 So.2d 1339 (Fla. 2d DCA 1996).
The defendant also claims that the officer told him that if he submitted to the blood test, then he would be permitted to go home; but, if he refused the blood test, then the defendant would be arrested. The defendant claims that this rendered his consent involuntary. Although neither party cited the case, State v. McGarry, 477 So.2d 1030 (Fla. 2d DCA 1985), is very much on point. In McGarry, the defendant argued that his blood test results should be suppressed because his consent to take the blood test had been coerced. The defendant claimed that the police improperly told him that if he voluntarily took the blood test, then he would be allowed to go home and would not be arrested that night. The Second District rejected the defendant’s argument and upheld the use of the blood test results. The McGarry case is binding on this Court. Therefore, based upon the ruling in McGarry the decision of the trial court is affirmed.
IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.
DONE AND ORDERED in Chambers at
James R. Case
Nancy Moate Ley
John A. Schaefer
cc: State Attorney
J. Kevin Hayslett, Esq.