County Criminal Court: CRIMINAL LAW – Breath/Urine/Blood test  Blood test results admissible where defendant reasonably believed to be DUI, appeared for treatment at a hospital, and the taking of a breath test was impractical. Fact that police failed to read implied consent does not warrant suppression of results. Order granting defendant’s motion to suppress reversed. State v. Garcia, No. CRC 05-87 APANO, (Fla. 6th Cir.App. Ct. August 2, 2007).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                                                  Appeal No. CRC 05-87 APANO

       UCN522005AP00087XXXXCR

SEAN ANTHONY GARCIA

 

            Appellee.

________________________________/

 

Opinion filed _____________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Kathleen Hessinger

 

Christopher LaBrusso, Esq.

Assistant State Attorney

 

Lynda Barack, Esq.

Attorney for appellee

 

 

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court granting the defendant’s motion to suppress. After reviewing the briefs and record, this Court reverses the decision of the trial court.

            The police conducted a traffic stop of the defendant. A deputy observed signs of impairment; specifically, a distinct odor of alcohol on the defendant’s breath, bloodshot eyes, and the defendant had a distinct sway while speaking with the deputy. The defendant was asked to perform field sobriety exercises, but he said he was unable to complete them because of health problems. He told the deputy he felt light-headed, had high blood pressure, and might pass out. The deputy had paramedics respond to the scene. The defendant appeared to be normal, but continued to insist he was not feeling well. He was convinced by the deputy to go to the hospital. The deputy asked the defendant to submit to a blood draw, and he agreed. The paramedics were unsuccessful in their attempts, but the blood was drawn by hospital personnel after the defendant arrived at the hospital. The deputy never read the defendant implied consent.

            The trial court found that it was impractical to take a breath test, and that a blood test was appropriate. The trial court, however, granted the defendant’s motion to suppress because it found he did not voluntarily consent to the blood draw. The trial court believed the defendant only acquiesced to police authority.

            No one is disputing the trial court’s findings that the police had reasonable cause to believe the defendant was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages, that he appeared for treatment at a hospital, and that there was cause to believe the administration of a breath test within a reasonable time was impractical or impossible. Generally, when these findings are made, the results of the blood test are admissible. See §316.1932(1)(c), Fla. Stat. (2006); State v. Hilton, 498 So.2d 698 (Fla. 5th DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987); State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000).

            The trial court, however, also found that: “the law requires he (defendant) be read implied consent before blood is drawn.” R. 19. The trial court then appears to have concluded that because the police did not read the defendant implied consent, the results of the blood test must be suppressed unless the defendant actually consented to the test. This was error.

            If the police do not inform the motorist of the consequences of refusing to take a blood test, suppression of the blood test results is not warranted. See State v. Dubiel, 32 Fla. L. Weekly D 1338 (Fla. 4th DCA 2007). This Court notes that this decision was only recently entered and was unavailable to the trial judge at the time she entered her order.

            In Dubiel, the court held that the failure to inform the motorist/defendant of the consequences of a refusal to consent, as required by §316.1932(1)(c), did not warrant the suppression of the blood test results. The court reasoned that there was no legislative intent in the statute to impose the sanction of suppression for failure to instruct on the consequences of refusal to submit to a blood test.

            The blood test results were admissible because the defendant was reasonably believed to be DUI, appeared for treatment at a hospital, and the taking of a breath test was impractical. The fact that the deputy failed to read him implied consent does not warrant the suppression of the blood test results.

            In light of this Court’s decision that the blood test results were admissible, it need not address whether or not the defendant voluntarily consented to the blood draw. Consent only becomes an issue of last resort --- if the blood test results are not admissible under any other method.                                  

            IT IS THEREFORE ORDERED that the order granting the defendant’s motion to suppress is reversed, and this case is remanded to the trial court for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of July, 2007.

 

 

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Judge

 

 

 

                                                                        ____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Judge

 

 

 

                                                                        ____________________________

                                                                                    Irene H. Sullivan

                                                                                    Circuit Judge

 

cc:        State Attorney

 

            Lynda Barack, Esq.

 

            Judge Hessinger