County Criminal Court: CRIMINAL LAW --- Breath/Urine/Blood Test --- Blood test results should have been excluded where the State failed to present evidence about who took the test and if they were statutorily authorized to take test. Judgment and sentence reversed. Soares v. State, No. CRC 06-84 APANO ( Fla. 6th Cir. App. Ct. April 17, 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

MARCEL K. SOARES

            Appellant,

v.                                                                                                                                          Appeal No. CRC 06-84 APANO

                                                                       UCN522006AP000084XXXXCR

STATE OF FLORIDA

            Appellee.

_____________________________/

Opinion filed __________________.

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge William H. Overton

Marcus K. Soares, Esquire

Attorney for appellant

Moin Khan, Esquire

Assistant State Attorney

ORDER AND OPINION

            THIS MATTER is before the Court on the defendant, Marcus Soares’, appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court reverses the judgment and sentence.

Facts

            The defendant was involved in a one-car accident. When law enforcement arrived at the scene and began an investigation, it became apparent that the defendant was possibly DUI. The defendant had bloodshot and watery eyes, and he had the odor of alcohol on his breath. The defendant was taken to the hospital. At the hospital, a trooper inquired how long he would be there. Hospital personnel informed the trooper that they did not know, but he was still being treated. At the time the defendant was strapped to a flat board. Since there was no breath testing machine at the hospital, and it appeared that the defendant would be unable to go to the police station any time soon, the trooper read the defendant implied consent and asked that a blood draw be taken. The blood draw was taken; it showed .112 and .110. The defendant was ultimately convicted in a non-jury trial of DUI. The defendant is appealing that conviction.

            The defendant claims the trial court erred in admitting the blood test results into evidence because the State failed to present a sufficient foundation. This Court agrees.

Blood test results should have been excluded

            A review of the record reveals that the State failed to present sufficient evidence about who took the blood draw. The record is devoid of any evidence about who actually took the test, or whether or not they were statutorily authorized to take blood. §316.1932(1)(f)2.a, Fla. Stat. (2005) provides that: “only a … registered nurse, licensed practical nurse, … or duly licensed … technician, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining its alcoholic content … .” Although the trial judge remembered some of the information presented during the motion to suppress and recited it during the non-jury trial, there was no mention during the non-jury trial of anything about the individual who took the blood draw. This lack of foundation should have resulted in the exclusion of the test results.

            In State v. Roose, 450 So.2d 861 (Fla. 3d DCA 1984), the appellate court excluded the blood test results because the State failed to present evidence that the person who performed the blood draw was qualified under the statute. The Roose court cited with approval language from Grala v. State, 414 So.2d 621, 622 (Fla. 3d DCA 1982): “We agree that the test results were improperly admitted into evidence since the State, by failing to present evidence of the identity or qualifications of the person who withdrew the blood, did not comply with the statutory provisions pertaining to such tests.” Similarly, this Court must find that the evidence should have been excluded.

            The blood test results in this case were critical; therefore this Court cannot conclude beyond a reasonable doubt that the inclusion of the blood test results did not contribute to the finding of guilt. Therefore, the judgment and sentence must be vacated. Given this Court’s decision on the first issue, it need not reach the second issue raised by the defendant.

            IT IS THEREFORE ORDERED that this Court reverses the judgment and


sentence and remands this case to the trial court for further action.

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

                                                                        ________________________

                                                                                    Michael F. Andrews

                                                                                    Circuit Court Judge

                                                                        ________________________

                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge

                                                                        _________________________

                                                                                    R. Timothy Peters

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney

            Marcus K. Soares, Esquire

            Honorable William H. Overton