County Criminal Court: CRIMINAL LAW –
DUI – motion to suppress - Sufficient evidence existed to show officer
had probable cause to order forcible blood draw where officer testified that his
investigation revealed the driver missed the turn in the road-officer could
smell the odor of alcohol and noticed
the one eye that was open was bloodshot and watery- EMS told the officer that
appellee had severe head trauma and were concerned about brain injury-EMS
advised officer that they wanted to bayflight the driver to the hospital- Order
reversed. State v. Heater, No. 053604CFAES
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
v. Appeal No: 053604CFAES
Lower No: CTC04110147JTES
County Judge Robert P. Cole
Nathan D. Brewer, A.S.A.
Attorney for Appellant
James A. Wardell, Esq.
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on the state's appeal of the trial court's order granting defendant's motion to suppress. After reviewing the briefs and record, this Court reverses the decision of the trial court.
Appellee was charged with Driving Under the Influence ("DUI") on May 23, 2004. On September 13, 2004, the appellee filed a Motion to Suppress the results of the blood draw. The Motion to Suppress was set for hearing on October 5, 2004. On October 5, 2004, Trooper Sessa was running late to the hearing on the motion and the court granted the Motion to Suppress due to the tardiness of Trooper Sessa. On October 8, 2004, the trial court entered an order granting appellee's motion to suppress. The appellant filed a Notice of Appeal claiming the trial court abused its discretion by granting the appellee's motion to suppress. This Court entered an opinion on April 27, 2005, reversing the lower court's order and remanded the case for further proceedings. On May 19, 2005, the appellee again filed his Motion to Suppress. The motion was heard on June 14, 2005.
the hearing, Trooper Sessa testified that he responded to the scene of a
motorcycle crash on the Ehren Cutoff, 583, on May 23, 2004. He testified that
when he arrived on the scene he observed a gentleman on the ground, being
On cross examination Sessa admitted that the smell of alcohol on the appellee and the one bloodshot eye was the only information he had that would have given him any suspicion that the accident may have been alcohol related.
The state had no further witnesses and the defense made argument that based on Sessa's testimony alone, the witness was not capable of giving informed consent due to the injuries. The defense then called the defendant, Brian Heater to testify. He stated that he did not remember the accident but did remember waking up in the hospital. He testified that he did not have any recollection of talking to Trooper Sessa and consenting to a blood draw. He also testified that he did not recall Sessa asking him questions about the blood draw and/or consent. The appellee testified that he was right handed but did not suffer any right arm injuries.
The court heard argument. The defense argued that the appellee was not in a position to consent. The defense went on to say "[y]our honor, the basis of this whole blood draw was the consent. This isn't a case where they're claiming that was --established serious bodily injury and it was a forced draw. It's based 100 percent on the consent. . . . [w]ithout injuries to some other person, the state was not in a position to try to obtain a voluntary consent from him, in the state that he was in." The state responded by arguing that there are three ways in which blood could be taken: a forcible blood draw, Implied Consent, and consent. The state argued that here, all three applied and the state was not restricted to proceed only under consent since the standard was whether or not any one of them applied.
The trial court entered an order on June 24, 2005, with the following findings: (1.) Trooper Sessa testified he arrived at a crash scene where a motorcycle driven by the appellee had crashed; (2.) Trooper Sessa says the appellee had severe head trauma and the EMT on scene said the injuries were life threatening and wanted to Bayflite the defendant; (3) The appellee testified he had no recollection of the accident except he had severe injuries to his face, had a broken nose and palate and spent there days in the hospital; (4)Trooper Sessa says that while in the ambulance the appellee consented to a blood draw but couldn't sign the consent; and (5.) The defendant, according to Trooper Sessa, had a smell of alcohol and one eye was bloodshot. The court found (1) The condition of the appellee precluded a voluntary waiver or consent to draw blood; and
(2.) The trooper did not have probable cause to believe the appellee was intoxicated based upon the smell of alcohol and one bloodshot eye when the appellee had severe head trauma from the accident. F.S. 316.1933(1)(a).
To order blood to be drawn pursuant to statute
authorizing compelled blood tests for impairment or intoxication, the officer
must have probable cause to believe that the driver was under the influence of
alcohol or drugs and that the driver had caused an accident resulting serious
bodily injury. F.S. 316.1933. In this case, the officer
testified that upon arriving on the scene, he learned that the driver missed
the turn in the road, and instead went straight into a ditch. During the investigation, he had an
opportunity to speak with the driver. He
testified that he could smell the odor of alcohol and noticed the one eye that
was open was bloodshot and watery. The
trooper also testified that
IT IS THEREFORE ORDERED that the ruling of the trial court be REVERSED.
DONE AND ORDERED in Chambers at New
day of February, 2006.
Primary Appellate Judge
Daniel D. Diskey
Office of the State Attorney
James A. Wardell, Esq
Judge Robert P. Cole
 It should be pointed out, as argued by appellant, the analysis was not restricted to the issue of consent simply because the officer proceeded on the basis of consent.
 FS 316.1933(1)(b) defines serious bodily injury as "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." (Emphasis added.)