County Criminal Court: CRIMINAL LAW --- Breath/Urine/Blood Test ---- Finding that defendant did not voluntarily consent to blood test is not conclusive where the State might be able to demonstrate compliance with implied consent statute. Order granting motion to suppress reversed. State v. Nosal, No. CRC 07-41 APANO (Fla. 6th Cir. App. Ct. April 24, 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

 

 

 

STATE OF FLORIDA

 

††††††††††† Appellant,

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 07-41 APANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522007AP000041XXXXCR

v.

 

 

JASON NOSAL

 

††††††††††† Appellee.

__________________________/

 

Opinion filed _________________.

 

Appeal from a decision entered by

the Pinellas County Court

County Judge John D. Carballo

 

Sarah Jonovich, Esquire

Assistant State Attorney

 

J. Kevin Hayslett, Esquire

Attorney for appellee

 

ORDER AND OPINION

 

††††††††††† (J. Demers)

 

††††††††††† THIS MATTER is before the Court on the Stateís appeal from an order entered by the Pinellas County Court granting the defendantís motion to suppress the results of a blood test. After reviewing the briefs and record, this Court reverses the decision and remands for further proceedings.

Facts

 

 

††††††††††† The police received a call from a resident who claimed that another person in a vehicle had followed her home and was parked in her driveway. The police arrived at the location and found the defendant in the driverís seat of the vehicle parked in the driveway with the engine running. He appeared to be either passed out or sleeping.

††††††††††† The officers were concerned because the defendant did not respond to knocking on the window and, despite the vehicle being parked on the steep driveway, the emergency brake was disengaged; so they opened the driverís door. A strong odor of alcohol came from the vehicle. The police observed a wet spot on the defendantís pants and smelled the odor of urine; it appeared that the defendant had wet himself. The police attempted to awaken the defendant and engaged the emergency brake. The defendant, however, attempted to drive the vehicle and disengaged the emergency brake. This caused the vehicle to roll backwards down the steep driveway and pinned the officers between the car door and the vehicle.

††††††††††† The officers again attempted to get the defendant out of the vehicle, but he again started to drive. Because of the defendantís inability or refusal to cooperate he was tasered. The defendant continued to resist and was again tasered. Paramedics were called to the scene --- pursuant to standard procedures whenever a person is tasered. The paramedics recommended that the defendant go to the hospital because he had an elevated heart rate that did not subside. At first, the defendant refused medical treatment. The officers were concerned the defendant may have had excited delirium, a possible consequence of someone being tasered. One of the officers told the defendant that he could go to the hospital, take a blood test, and go home pending the results of the test; or, if he refused medical treatment, he would be taken to the jail. The officer also told the defendant --- who was a fellow police officer in a nearby jurisdiction ---- that he might face media attention if he were taken to jail. The defendant was persuaded to go to the hospital.

††††††††††† While at the hospital an officer believed that the defendant would be admitted; therefore, he determined that the taking of a breath test would be impractical at the time because there was no breathalyzer at the hospital. The officer then asked the defendant to take a blood test, and the defendant submitted. The defendant sought to suppress the results of the blood test. The trial court granted the defendantís motion to suppress, and the State is appealing that order.

Consent to blood test is not the initial inquiry

 

††††††††††† †††††††††††

††††††††††† The trial court relied upon Vaughn v. State, 13 Fla. L. Weekly Supp. 519h (Fla. 6th Cir. App. Ct. March 20, 2006) in reaching its decision. That decision, however, involved an administrative driverís license suspension and was questioned in the later decision in the criminal DUI case arising out of the same incident. Vaughn v. State, No. CRC 06-16 APANO (Fla. 6th Cir. App. Ct. Feb. 21, 2008).

††††††††††† In Vaughn, the defendant was involved in an accident. When the police arrived, he admitted to driving, and he showed signs of impairment. He was taken to the hospital for treatment of injuries to his face. A deputy determined that it was impractical to take a breath test, and the defendant submitted to a blood test. The defendant sought to have the results suppressed because he claimed he only submitted to the blood test because the deputy told him that if he did not take the blood test he would be arrested, and therefore, his submission to the blood test was involuntary. The appellate court rejected his argument because whether or not the blood draw was voluntary was not the issue. If the blood test was properly administered pursuant to the implied consent law, then the voluntariness of the consent is not an issue.

††††††††††† The court noted that in Slaney v. State, 653 So.2d 422 (Fla. 3d DCA 1995) the appellate court ruled that voluntary consent is only important when the blood test is not authorized by the implied consent law. Thus, it was premature for the trial court to consider the voluntary consent issue.[1] The State need rely on the defendantís alleged voluntary consent to take the blood test only if it fails to establish that the blood test was taken in compliance with the implied consent law.

Compliance with implied consent is the issue

 

 

††††††††††† In the case at bar, the focus should not have been on voluntary consent. If, pursuant to the implied consent law, 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 the defendant appeared for treatment at a hospital, and that the police reasonably determined that the administration of a breath test within a reasonable time was impractical or impossible, the results of the blood test are admissible. See ß316.1932(1)(c), Fla. Stat. (2006); State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000); State v. Hilton, 498 So.2d 698 (Fla. 5th DCA 1986), rev denied, 506 So.2d 1041 (Fla. 1987). The trial court, however, did not appear to address this issue. Instead, the court focused on the voluntariness of the consent. No findings of fact were made about the above-described factors. Therefore, the order granting the motion to suppress must be reversed, and this matter remanded to the trial court so that it may determine if the results are admissible pursuant to the implied consent law.

††††††††††† IT IS THEREFORE ORDERED that this Court reverses the order suppressing the results of the blood test, and remands this case to the trial court so that the court may determine whether or not the results of the blood test should come in via the implied consent law.

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

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Joseph A. Bulone

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

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

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

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Cynthia J. Newton

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

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

 

††††††††††† Honorable John D. Carballo

 

††††††††††† J. Kevin Hayslett, Esquire

†††††††††††

†††††††††††

 

 



[1] This Court does not reach the issue of whether or not the consent to take the blood test was voluntary, and it takes no position at this time on the issue.