County
Criminal Court: CRIMINAL LAW — DUI — Motion to
Suppress – Since Appellant freely and voluntarily consented, implied consent is
inapplicable. Denial of motion to
suppress affirmed. John
Todd Dempsey v. State of Florida, No. CRC-10-001058-CFAES
(Fla. 6th Cir. App. Ct. February 4, 2011).
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 PASCO COUNTY
APPELLATE DIVISION
JOHN TODD DEMPSEY,
Appellant,
UCN: 512010CF001058A000ES
v. Case
No: CRC1001058CFAES
Lower
No: 04-2611DGOTES
04-8964SATTES
STATE OF FLORIDA,
Appellee.
_____________________________/
Appeal from Pasco County Court
County
Judge Robert P. Cole
Angela
B. Wright, Esq.
for Appellant
Matthew
O. Parrish, A.S.A.
for Appellee
ORDER AND OPINION
Appellant
appeals the trial court’s order denying his motion to suppress the results of a
blood draw. Appellant asserts that the
officer did not have sufficient probable cause to compel a blood draw. Since Appellant freely and voluntarily
consented, the implied consent requirements are inapplicable in this case. Therefore, this Court affirms the trial
court’s order as set forth below.
FACTUAL
BACKGROUND
Sergeant
Larry Kraus was dispatched to a
traffic crash on State Road 54 and Oakstead
Boulevard, on July 12, 2004. Appellant
had rear-ended a vehicle that was traveling down State Road 54. The victims were traveling and occupying
their lane in front of Appellant when he rear-ended them. Appellant and the victims were both traveling
at or below the speed limit. There were
no skid marks. Appellant was not wearing
his seat belt and hit his head on the windshield, which cracked. Appellant had immediately fled from the scene
of the accident, but was later apprehended by Deputy Irizarry and his K9 Bud in
the wooded area of the Oakstead subdivision.
After
Appellant was found, he was put in the back of an ambulance. Sergeant Kraus spoke with Appellant while he
was in there. Sergeant Kraus informed
Appellant that he had completed his traffic crash investigation and would now
be conducting a criminal DUI investigation.
He suspected that Appellant might have a head injury and was
intoxicated. Appellant had a strong odor
of alcohol and blood-shot, watery eyes. When
Sergeant Kraus spoke to Appellant, he seemed alert and aware. Appellant commented that he had a lot to
drink. Sergeant Kraus asked Appellant if
he would submit to a blood test to determine his alcohol level. He told Appellant that it would be used as an
alternative to a breath or urine test. Appellant
consented and signed the consent form. Sergeant
Kraus never read Appellant Implied Consent because he had agreed to take the
blood draw. Sergeant Kraus surmised that
if Appellant had knowledge to run from a traffic scene, he had plenty of mind capability
to sign a consent form. Appellant was
then transported to University Community Hospital for a head wound.
On
February 2, 2005, Appellee was charged with DUI—Property Damage and Leaving the
Scene of a Crash after the results of the blood draw indicated that Appellant’s
blood alcohol level was .256 and .257.
Appellant filed a motion to suppress the blood results. Following a hearing, the trial court denied
Appellant’s motion to suppress on February 9, 2010, finding that Appellant
freely and voluntarily consented to the taking of his blood. A timely notice of appeal was filed on
February 18, 2010.
LAW
AND ANALYSIS
A trial court's ruling on a motion
to suppress presents a mixed question of law and fact. Butler v. State,
706 So. 2d 100 (Fla. 1st DCA 1998). A trial court's ruling on a motion to
suppress is presumptively correct and will be upheld if supported by the
record. Cuervo
v. State, 967 So. 2d 155, 160 (Fla. 2007); State v. Shuttleworth, 927 So. 2d 975,
978 (Fla. 2d DCA 2006). An
appellate court is bound by the lower court's factual findings if they are
supported by competent, substantial evidence. Cuervo, at 160. However, the trial court's application of the
law to the facts is reviewed under the de
novo standard. Williams v. State,
769 So. 2d 404, 406 (Fla. 2d DCA 2000).
Appellant argues that the trial
court erred by denying his motion to suppress.
Specifically, Appellant contends that Sergeant Kraus did not have
probable cause to compel a blood draw from Appellant. An implied consent analysis, however, is not
supported by the facts of this case.
Rather, this is a case of actual consent. Florida Statute 316.1932 lays out the
requirements for a blood draw under implied consent. If a defendant, however, voluntarily consents
to a blood draw, the test results are admissible even if there is a lack of
conformity to the implied consent law. See, Pardo
v. State, 429 So. 2d 1313 (Fla. 5th DCA 1983); Robertson
v. State, 604 So. 2d 783 (Fla. 1992). Section 316.1932 allows for admissibility of
tests made in accordance with its provisions, but it does not constitute a
limitation on the admissibility of any competent evidence that would otherwise
be admissible. Pardo, at 1315.
Sergeant
Kraus did not need to read implied consent, as it did not apply to the
admissibility of Appellant’s blood sample. Sergeant Kraus informed Appellant
that he was conducting a criminal investigation and would like him to submit to
a blood test to determine his alcohol level.
He told Appellant that it would be used as an alternative to a breath or
urine test, and there is no indication that Appellant was misinformed. Since Appellant gave his actual consent to
take the blood draw, implied consent was unnecessary. In situations where it is more convenient for
a person to submit to a blood test, there is no reason to exclude such results if
the consent was knowing and voluntary. Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).
This Court must defer to the trial court’s factual findings that
Appellant freely and voluntarily consented and uphold its order denying
Appellant’s motion to suppress the results of the blood draw. Ross v. State, 45 So. 3d 403 (Fla. 2010). It
is therefore,
ORDERED AND ADJUDGED that the
trial court’s order denying Appellant’s motion to suppress is hereby AFFIRMED.
DONE
AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 4th
day of February 2011.
Original
order entered on February 4, 2011 by Circuit Judges Stanley R. Mills, W. Lowell
Bray, Jr., and Daniel D. Diskey.