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).











                                                                        UCN:              512010CF001058A000ES

v.                                                                     Case No:       CRC1001058CFAES

                                                                        Lower No:    04-2611DGOTES



STATE OF FLORIDA,                                           



Appeal from Pasco County Court

County Judge Robert P. Cole


Angela B. Wright, Esq.

for Appellant


Matthew O. Parrish, A.S.A.    

for Appellee








            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.




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.                 



            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.