County Criminal Court:  CRIMINAL LAW – DUI – Motion for continuance – motion in limine to exclude urinalysis – trial court did not abuse its discretion in denying motion for continuance requested just 6 days before trial – trial court did not abuse its discretion in denying motion in limine when appellant failed to make a contemporaneous objection when urinalysis evidence introduced at trial -- Order affirmed.  Reese v. State, No. 03-00003 APANO (Fla. 6th Cir. App. Ct. Feb. 6, 2004). 

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MARC DARRELL REESE,

                        Appellant,

vs.                                                                                            Appeal No. CRC 03-00003 CFANO

                                                                                                UCN522003MM00003XXXXNO

STATE OF FLORIDA,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Judgment of Guilt

Pinellas County Court

Judge Sonny Im

 

Maribeth L. Wetzel, Esquire

Attorney for Appellant

 

C. Marie King, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

            THIS CAUSE came before the Court on appeal, filed by the defendant, Marc Darrell Reese (Reese), from the Judgment of Guilt, entered October 9, 2002, upon being found guilty by jury verdict.  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the Order as set forth below.

The underlying facts are that on June 5, 2002, Reese was cited for careless driving and driving under the influence of alcohol or controlled substance (DUI) following a motor vehicle crash.  Officer Fuller, of the St. Petersburg Police Department, was the responding officer.  Upon observing signs of impairment, a DUI investigation was conducted.  Reese performed poorly on the field sobriety tests, but the subsequent breath tests results were triple zero, indicating no alcohol in Reese’s system.  Reese then submitted to the requested urine test which revealed the following substances present:  hydrocodone, nordiazepam, temazepam, carisoprodol, carisoprodol metabolites, and cannabinoids.  In response to health questions, Reese stated that he had not been injured lately, but was half blind from a motorcycle accident of many years ago.  Reese did not mention a brain injury.  Reese did admit to taking two pills, 100 milligrams of Vicodin between 7:00 and 7:30 that morning.  

Reese raises two issues on appeal.  The first issue is whether the trial court erred in denying Reese’s oral motion for a continuance.   The second issue is whether the trial court erred in denying Reese’s Motion in Limine which sought to exclude the results of the urinalysis.    The standard of review for both issues is abuse of discretion.  See Gorby v. State, 630 So.2d 544 (Fla. 1993); see also State v. Polak, 598 So.2d 150, 152 (Fla. 1st DCA 1992). 

In addressing the first issue, the Court finds that the trial court did not abuse its discretion is denying Reese’s oral motion for a continuance just six days before trial.  The record shows that the Public Defender was appointed on August 13, 2002, almost two months prior to the motion for continuance was presented to the trial court, on October 3, 2002.  The Public Defender requested the continuance to have a medical doctor examine Reese, following the Public Defender’s receipt of several documents by Reese indicating he’d suffered a brain injury about five years prior.  Under these facts, the Court can not find that Reese made a particularized showing of need to the trial court, nor that he would be prejudiced by the denial of his request.  See Overton v. State, 801 So.2d 877 (Fla. 2001).  Reese made no effort to secure an expert witness or medical evaluation and, as the trial court expressed in its oral ruling, Reese could subpoena his treating medical doctor or records for trial.

In addressing the second issue, the Court finds that the trial court did abuse its discretion in denying Reese’s Motion in Limine to exclude the urinalysis.  See State v. Bodden, 2002 WL 31421575 (Fla. 2d DCA Oct. 30, 2002)(concluding that a urine test taken pursuant to the implied consent law, if not approved pursuant to rule-making requirements of the Administrative Procedures Act, is not admissible as a scientific test pursuant to traditional rules regarding the admissibility of evidence), rev. gr., 853 So.2d 1071. [1]   However, the Court finds that Reese’s failure to make a contemporaneous objection at the time the State introduced the results of the urinalysis precludes reversal on this issue.  See Coffee v. State, 699 So.2d 299, 300 (Fla. 2d DCA 1997)(explaining the general rule that a motion in limine is not sufficient to preserve the alleged error for appellate review in the absence of a further contemporaneous objection when the evidence is offered)(citations omitted).  Recent legislative changes providing that a party need not make a contemporaneous objection cannot be retroactively applied to this case.  See Fla. Stat. § 90.104(1)(b)(2003).  Therefore, it is, 

            ORDERED AND ADJUDGED that Judgment of Guilt is hereby affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2004.

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

                                                           

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

Copies furnished to:

 

Judge Sonny Im

 

Maribeth L. Wetzel, Esquire

Assistant Public Defender

 

C. Marie King, Esquire

Assistant State Attorney

[1] The Court must follow the Bodden holding even though the Fifth District Court of Appeal squarely disagreed with the ruling, as set forth in  State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003).  The Court also notes recent legislative changes impacting the Bodden decision, but such action does not apply to this case.