County Criminal Court: CRIMINAL LAW --- Breath/Urine/Blood Test --- Blood draw was proper where police had probable cause to believe defendant DUI; defendant appeared at hospital for treatment; and breath test was impractical because defendant tied to a stretcher and wearing neck brace when police saw him. Judgment and sentence affirmed. Ryan v. State, No. CRC 06-70 APANO, (Fla. 6th Cir. App. Ct. April 9, 2008).

 

 

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

 

KYLE SCOTT RYAN

††††††††††† Appellant,

v.                                                                                                                                           Appeal No. CRC 06-70 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††† UCN522006AP000070XXXXCR

 

STATE OF FLORIDA

††††††††††† Appellee.

_____________________________/

 

Opinion filed __________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge John Carballo

 

Walter L. Grantham, Jr., Esquire

Attorney for appellant

 

John S. Thacker, Esquire

Assistant State Attorney

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the defendant, Kyle Ryanís, appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence because the motion to suppress was properly denied.

Facts

††††††††††† Approximately 1:30 in the morning, the police responded to the scene of a one-vehicle accident. The defendant, who admitted driving the vehicle, seemed confused, disoriented, and had the smell of alcohol on him. He also had bloodshot eyes, a flushed face and slurred speech. The defendant, who claimed not to be injured, was voluntarily taken to a hospital as a precautionary measure. When a police officer arrived at the hospital, he found the defendant lying on his back on a stretcher, wearing a neck brace, and waiting for a bed in the emergency room. Although the defendant was placed in this position solely as a precautionary measure pursuant to emergency protocols, the officer testified that the defendant was not permitted to get up from that position because he had not yet been treated for possible injuries. The officer observed that the defendant had the signs of impairment, but there was no breathalyzer at the hospital and the officer determined that it was impractical or impossible to conduct a breath test. Instead the officer read the defendant implied consent; and the defendant submitted to the blood test. The defendant entered a no contest plea to DUI charges, reserving the right to appeal the denial of his motion to suppress. The defendant claims that the trial court should have granted his motion to suppress the results of his blood test.

Blood draw pursuant to implied consent statute was proper

 

††††††††††† The trial court properly found that the requirements of a blood draw pursuant to ß316.1932(1)(c) of the Florida Statutes (the implied consent statute) were met. Those requirements are: (1) the officer must have probable cause to believe the defendant is DUI; (2) the defendant must appear for treatment at a medical facility; and (3) there must be evidence that the administration of a breath test is impractical or impossible. Clearly, there is sufficient evidence to meet the first two requirements, only the third requirement justifies a discussion.

††††††††††† In Dault v. State, No. CRC 06-42 APANO, (Fla. 6th Cir. App. Ct. May 21, 2007), this Court held that law enforcement need not intrude and ask hospital personnel details about the defendantís treatment. If it reasonably appears from the circumstances that the defendant is likely to be at the medical facility for some time and that there is no practical way to take a breath test at the hospital, a blood sample may be secured because a breath test is impractical or impossible. In the case at bar, the officer testified that the defendant was tied to a stretcher and wearing a neck brace at the time he first saw him. In addition, the officer testified that there was no breathalyzer at the hospital. Under these circumstances, it was reasonable for both the officer and the trial court to conclude that taking a breath test was impractical or impossible. The requirements for taking a blood test were met in this case, and the trial courtís denial of the motion to suppress was proper.

††††††††††† Once the requirements of a blood draw pursuant to the implied consent statute have been met, voluntary consent is not relevant. See Vaughn v. State, No. CRC 06-16 APANO (Fla. 6th Cir. App. Ct. August 21, 2007).

††††††††††† IT IS THEREFORE ORDERED that this Court affirms the judgment and sentence.

††††††††††† DONE AND ORDERED in Clearwater, Florida this _____ day of April, 2008.

 

 

††††††††††† __________________________††††††††††††††††††† ___________________________

††††††††††† †††††††† Michael F. Andrews††††††††††††††††††††††††††††††††††††††††††† Raymond O. Gross

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

 

††††††††††††††††††††††† ††††††††††††††††††††††† ___________________________

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

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

 

 

cc:††††††† Officer of the State Attorney

††††††††††† Walter L. Grantham, Jr., Esquire

††††††††††† Honorable John Carballo