County Criminal Court: CRIMINAL LAW – DUI – Motion to suppress results of forced blood test in DUI case was properly denied when officer who responded to scene of accident formed probable cause that the driver was intoxicated and caused an accident resulting in serious bodily  harm, pursuant to section 316.1933, Florida Statutes. Denial of motion to suppress affirmed; judgment affirmed. David L. Harrington v. State, CRC08-00083APANO (Fla. 6th Cir. App. Ct. December 10, 2009).

 

 

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 08-00083APANO UCN: 522005CT161845XXXXXX

 

DAVID L. HARRINGTON

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from an Order Granting

Motion to Suppress

entered by the Pinellas County Court

County Judge Lorraine M. Kelly

 

J. S. Lucas Fleming, Esquire

Attorney for Appellant

 

Nicole Michelle Rose, Esquire

Office of the State Attorney

Attorney for Appellee

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, David L. Harrington’s appeal from a decision of the Pinellas County Court to deny Appellant’s motion to suppress.[1] The Appellant pleaded no contest to Driving Under the Influence but reserved his right to appeal the denial of his motion to suppress. After reviewing the briefs and record, this Court affirms the order denying the motion to suppress and the judgment.

Factual Background and Trial Court Proceedings

At hearing before the Honorable Lorraine M. Kelly on Appellant’s motion to suppress Officer Scott Galley of the Pinellas Park Police Department testified as to the circumstances of his investigation at the scene of the crash of Appellant’s motorcycle.  On August 21, 2005, at approximately 1:00 a.m., Officer Galley was on patrol when he noticed what appeared to be a motorcycle crash in the southbound lanes in the 8200 block of 66th Street.  As Officer Galley approached the scene he saw the Appellant, David L. Harrington standing, or kneeling, over a female, Jennifer Rose, that was laying face down in the roadway.  Ms. Rose had been a passenger on the motorcycle.  The officer went up to try to talk to Ms. Rose and got no response.  There was a pool of blood surrounding her head and the officer could hear her breathing, but it sounded like she was gurgling blood.  She was unconscious and the officer called for paramedics.  When they arrived and examined Ms. Rose they told Officer Galley she was in poor condition.  Ms. Rose was transported to Tampa General Hospital.  As the investigation continued the hospital advised Ms. Rose was in critical condition and her outlook was not good.

When the officer looked at the motorcycle involved in the accident it appeared the motorcycle had malfunctioned causing the accident.  The seat on the motorcycle was no longer attached and based upon its size it appeared to be made for one person.  Officer Galley, as he was looking at the motorcycle had another officer that was more familiar with motorcycles come over and look at the seat.  That officer thought the seat was only for one person.  There was no backrest at the rear of the seat and directly behind the seat was the fender.  The motorcycle had no foot pegs for a passenger.  The brackets supporting the rear fender had broken causing the fender to slide underneath the tire and in turn made the bike slide and lose control.  Those brackets did not appear to the officer to be heavy or constructed to be weight bearing.  It appeared they were just there to hold the fender on.  There also did not appear to be any bolts that came loose, the brackets had actually broken in half.  Based upon his observations, Officer Galley believed the malfunction was caused by there being too much weight placed on the fender due to having an extra person on the motorcycle.

When the officer spoke with Mr. Harrington the officer could smell an odor of alcoholic beverage coming from Appellant’s breath and his eyes were bloodshot and watery.  Mr. Harrington told Officer Galley that once the bike started skidding, he tried to hold on to Ms. Rose and after that they were both thrown from the motorcycle.  Mr. Greenough, a witness to the accident, told the officer that he was about 40 to 50 feet behind the crash when it occurred, that he thought that they were going the speed limit because they had just left Secrets bar and did not have much time to speed up.  The motorcycle had immediately started fishtailing.  Mr. Harrington had been at Mr. Greenough’s home and then at Secrets bar prior to the accident.  Witnesses told Officer Galley that the Appellant had been drinking.  The officer asked Mr. Harrington to perform field sobriety exercises and he refused.

Based on the seriousness of the injuries to Mrs. Rose, the odor of alcoholic beverage, the bloodshot, watery eyes that he observed on Mr. Harrington, the witness statements about him drinking, the officer decided to ask for a blood draw from Mr. Harrington.  Mr. Harrington refused the request.  Officer Galley then read him implied consent for the blood test and he again refused to take the blood test.  The officer then told Mr. Harrington that he would end up doing a forced blood draw and Mr. Harrington agreed to cooperate with the forced blood draw.  Paramedic Olsen administered the first blood draw at 2:00 a.m.   Paramedic Bray did the second at 3:05 a.m.

            Appellant, David L. Harrington, also testified at the hearing.  The trial court entered a written order detailing both factual findings and conclusions of law.  In pertinent part the trial court wrote:

The Court finds that whether or not the seat was designed for one person or two or whether a failure of the fiberglass fender caused the accident, the Defendant allowing the rider to get on the bike was in and of itself negligence and gave the officer probable cause to draw blood.  These facts are undisputed particularly in light of Defendant’s own testimony that the rider was too intoxicated to ride safely on his bike, hence his call for a cab to take her home.  The Defendant could have stopped his vehicle or refused to go forward on the bike until the passenger was no longer sitting on the seat.  Instead, the Defendant, knowing his passenger was a potential hazard to a safe ride on his bike, drove away with her on the back of his vehicle.

 

Mr. Harrington argues that there was no evidence he caused the accident and therefore no lawful basis to take samples of his blood pursuant to Florida Statute § 316.1933. 

Standard of Review

Our review of a trial court's ruling on a motion to suppress evidence involves a mixed question of law and fact. We accord a presumption of correctness with regard to the trial court's determination of facts where the trial court's factual findings are supported by competent, substantial evidence.  All evidence and reasonable inferences there from must be construed in a manner most favorable to upholding the trial court's ruling.  However, we review the trial court's application of the law to those facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001); State v. Pruitt, 967So2d 1021 (Fla. 2nd DCA 2007); Newkirk v. State, 964 So2d 861, 863 (Fla. 2nd DCA 2007).

Compelled Blood Draws

Florida Statute § 316.1933(1) provides for compelled blood draws under certain circumstances.  “(T)o order blood to be drawn pursuant to this statute, the officer must have probable cause to believe that the driver was under the influence of alcohol or drugs and that the driver had caused an accident resulting in “serious bodily injury.”  State v. Catt, 839 So.2d 757, 759 (Fla. 2nd DCA 2003). (emphasis added).  The Florida Supreme Court in addressing causation as an element of the crimes proscribed by section 316.193(3), wrote, “the state is not required to prove that the operator's drinking caused the accident. The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.”  Magaw v. State, 537 So.2d 564, 567 (Fla. 1989).  The term “serious bodily injury” means an injury to any person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.  § 316.1933(1)(b), Fla. Stat. (1982). 

The objective facts and circumstances observed by the officer at the time and place of the accident, and reliable information given to the officer by others must be sufficient to allow a person of reasonable caution to make the probable cause determination.  State v. Brown, 725 So.2d 441, 444 (Fla. 5 DCA 1999).  To establish probable cause, an officer may rely on information provided at the scene by other law enforcement officers and by emergency personnel. Catt, 839 So.2d at 759.  Circumstantial evidence drawn from observations of the accident scene can be considered in determining the major factors that caused the accident.  State v. Johnson, 695 So.2d 771, 775 (Fla. 5th DCA 1997).

Probable Cause

“ ‘Probable cause is a fluid concept that deals in probabilities, which include common sense conclusions by law enforcement officers.’ (citations omitted).  Probable cause is not the same standard as beyond a reasonable doubt, and ‘the facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based.’” (citations omitted).  Catt, 839 So.2d at 759.  “(P)robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Williams v. State, 731 So.2d 48, 50 (Fla. 2nd DCA 1999).

The Present Case

In the present case, the factual findings of the trial court were supported by competent, substantial evidence. In construing the evidence and the reasonable inferences drawn from that evidence in a manner most favorable to upholding the trial court's ruling we conclude: first, that the objective facts and circumstances observed by Officer Galley at the time and place of the accident, and the information that had been given to him by others at the time plainly provided probable cause to believe the female passenger on the motorcycle, had received serious bodily injuries and that Mr. Harrington was under the influence of alcohol while operating the motorcycle; second, that there was also probable cause to believe the motorcycle crash was caused by there being too much weight placed on the fender due to having an extra person on the motorcycle.  Specifically, Mr. Harrington had driven the motorcycle away from a bar with the intoxicated passenger, Ms. Rose, aboard.  Almost immediately the fender support brackets broke and the fender collapsed onto the rear tire causing the accident.  See Catt, 839 So.2d at 759; Keeton v. State, 525 So.2d 912, 914 (Fla. 2nd DCA 1988); Gerlitz v. State, 725 So.2d 393, 394 (Fla. 4th DCA 1998); Johnson, 695 So.2d at 774.

Conclusion

            This court concludes that the order of the trial court denying Appellant’s Motion to Suppress should be affirmed.

            IT IS THEREFORE ORDERED that the order of the trial court denying Appellant’s Motion to Suppress and the Judgment entered below are affirmed.

ORDERED at Clearwater, Florida this ___ day of December, 2009.

 

 

Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross

 

 

 

 

 

 

cc:       Honorable Lorraine M. Kelly

            J. S. Lucas Fleming, Esquire

            Office of the State Attorney


[1] This motion had previously been heard and ruled upon by another judge.  Appellant was granted a rehearing and a second evidentiary hearing was conducted by the Honorable Lorraine M. Kelly.