County Criminal Court: CRIMINAL LAW Ė Breath/Urine/Blood Test Ė Blood test results should have been admitted where a passenger in defendantís vehicle had collided with windshield and was taken to hospital, was unconscious, possibly suffering from neck injuries, and medical personnel said the passenger was in serious condition. Order granting motion to suppress reversed. State v. Hughes, No. CRC 06-27 APANO, (Fla. 6th Cir. App. Ct. March 23, 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 06-27 APANO

††††† UCN522006AP00026XXXXCR

VIRGIL HUGHES

 

††††††††††† Appellee.

______________________________/

 

 

Opinion filed _________________.

 

Appeal from a decision of the

Pinellas County Court

Honorable Thomas B. Freeman

Pinellas County Judge

 

Shea G. Gryglewicz, Esquire

Assistant State Attorney

 

Donald C. Anderson, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the Stateís appeal from a decision of the Pinellas County Court granting the defendantís motion to suppress. After reviewing the Stateís brief and record -- the appellee failed to file a brief -- this Court reverses the decision of the trial court.

††††††††††† The defendant was involved in an accident. A police officer arrived at the scene and began an investigation. During the course of the investigation, the officer noticed the defendantís eyes were glassy and constricted, his speech slurred, and he appeared to be under the influence of a narcotic. The attending paramedics were also of the opinion that the defendant was under the influence of a narcotic. The defendant admitted to taking a morphine pill. The paramedics also informed the officer that the defendant needed to be taken to the hospital for medical treatment. In addition to the defendant driver, the passenger was also injured. As a result of the accident, the passengerís head had collided into the windshield. She was unconscious and taken to the hospital; accompanied by another officer. That officer informed the investigating officer that the passengerís condition had been upgraded to serious by the doctors at the hospital. The investigating officer went to the hospital; he was informed by the nurses that the passenger was in serious condition. The defendant was slipping in and out of consciousness, but the officer was able to read implied consent to the defendant, and the defendant agreed to a blood test. The defendant then slipped into unconsciousness before he could sign the consent form.

††††††††††† It is unclear from the written order and the transcript why the trial court granted the defendantís motion to suppress. In addition, the defendant failed to file an answer brief. There were, however, several reasons to deny the defendantís motion to suppress and admit the blood test results.

††††††††††† First, ß316.1933(1)(a), Fla. Stat. (2005) permits the forcible extraction of a blood sample if the police have reasonably trustworthy information to believe that the driver was impaired because of alcohol, or a chemical substance, or a controlled substance at the time of an accident causing serious bodily injury. In the case at bar, there was ample testimony to satisfy the impairment criterion. At issue appears to be the serious injury criterion. The appellate court in Carbone v. State, 564 So.2d 1253 (Fla. 4th DCA 1990) addressed this issue. It found that the police had probable cause to believe there were serious injuries where paramedics told the officer that the accident victim was unconscious and possibly suffering from neck and other unspecified internal injuries.

††††††††††† Similarly, in the case at bar the officer had information from doctors and nurses that the passenger was in serious condition. The officer observed the passenger had head injuries, was unconscious, and being transported to the hospital for treatment. As in Carbonne, the serious bodily injury criterion had been met. Thus, the results of the blood test should have been admitted.

††††††††††† Second, the blood test results should have been admitted under another section of the implied consent law. ß316.1932(1)(a)1.a,b, Fla. Stat. (2005) permits a blood withdrawal when it is impractical or impossible to secure a breath or urine test. The testimony from the officer was that the defendant was slipping back and forth between consciousness and unconsciousness. This Court notes that because there was no odor or other indication of alcohol, and narcotics was suspected, it would be a urine test and not a breath test that was needed. Nevertheless, a urine test and a breath test would have been equally impractical because the defendant was unconscious. Therefore, the blood test results should have been admitted under this theory as well.

††††††††††† Last, there appears to have been sufficient evidence to establish that the defendant voluntarily agreed to take the blood test. That issue need not be resolved, however, given this Courtís ruling on the previous two justifications for allowing the blood test results into evidence.

††††††††††† There appeared several reasons on the record to support the introduction of the blood test results. Therefore, the trial court should not have granted the defendantís motion to suppress. Accordingly, the order granting the defendantís motion to suppress is reversed.

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

††††††††††† ORDERED at Clearwater, Florida this _____ day of March, 2007.

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Linda R. Allan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††††† Circuit Court Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† R. Timothy Peters††††††††††††††††††††††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††††††† Circuit Court Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††† John A. Schaefer

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††† Circuit Court Judge

 

cc:††††††† Office of the State Attorney

 

††††††††††† Honorable Thomas B. Freeman

 

††††††††††† Donald C. Anderson, Esquire

 

 

 

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