County Criminal Court: CRIMINAL LAW Ė Breath/Urine/Blood Test Ė Blood test results properly admitted because it was impractical to take a breath test where defendant was in hospital, on a gurney, immobilized, wearing a neck brace, and apparently in pain. Police not required to ask medical personnel how long defendant would be in hospital, and defendantís subsequent quick release from hospital not sufficient to justify suppression. Judgment and sentence affirmed. Dault v. State, No. CRC 06-42 APANO, (Fla. 6th Cir. App. Ct. May 21, 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

 

 

RANDALL LEE DAULT

 

††††††††††† Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 06-42 APANO

UCN522006AP00042XXXXCR

STATE OF FLORIDA

 

††††††††††† Appellee.

______________________________/

 

 

Opinion filed ___________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

Honorable John Carballo

County Court Judge

 

Larry Sandefer, Esquire

Attorney for appellant

 

Andrew Taylor, Esquire

Assistant State Attorney

 

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the defendant, Randall Daultís, appeal from a judgment and sentence entered against him by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

††††††††††† The defendant was involved in an accident in which his SUV had flipped over. When the deputy arrived at the scene, he saw the defendant on a stretcher being treated by paramedics. The deputy noted there were minor injuries, but also smelled a strong odor of alcohol on the defendantís breath. The defendant was transported by the paramedics to the hospital. The deputy arrived at the hospital about a half an hour later. There he observed the defendant was on a gurney, immobilized, wearing a neck brace, and appeared to be in pain. The deputy testified that in his opinion the defendant would be there for several hours, or even be admitted into the hospital. The deputy testified that the defendant at that time could not take a breath test. At that point the deputy had been at the hospital for forty minutes. The deputy then read the defendant the implied consent form and asked him to submit to a blood test, and the defendant agreed.

††††††††††† The defendant contends that the deputyís decision to require a blood test was improper. He argues that the deputy did not ask the hospital personnel how long the defendant would be at the hospital; therefore, his decision to ask the defendant to take a blood test was premature and unreasonable. This Court disagrees.

††††††††††† Florida Statute ß316.1932(1)(c) allows the withdrawal of a blood sample when

the police have probable cause to suspect the defendant is DUI, the defendant has appeared at a hospital, and it is impractical or impossible to get a breath sample within a reasonable time. The first two conditions have been met in this case; at issue is whether or not it was impractical or impossible for the defendant to take a breath test within a reasonable time.

††††††††††† The deputyís decision that it was impractical to ask the defendant to take a breath test at the time is supported by the evidence. Although the defendant called his girlfriend and had her pick him up from the hospital within twenty minutes from taking the blood test, it was not unreasonable for the deputy to conclude from his observations that the defendant was not, nor would be in the immediate future, capable of taking a breath test. The defendantís demand that the deputy intrude and ask busy emergency personnel when the defendant could take a breath test, or when he would be released, before the deputy could conclude a breath test is impractical and not reasonable.

Contrary to the defendantís assertion, the trial court did not make a blanket rule that a breath test in an emergency room is always impractical. The trial court merely determined that in this particular case it was impractical to take a breath test of this particular defendant. The trial courtís decision was proper.

††††††††††† IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.

††††††††††† ORDERED at Clearwater, Florida this _____ day of May, 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 John Carballo

 

††††††††††† Larry Sandefer, Esquire