County Criminal Court:  CRIMINAL LAW – Urine Toxicology Report – person arrested for DUI may volunteer to give a urine sample – trial court erred by refusing to hear argument or testimony on whether sample was provided voluntarily – implied consent law does not require urine testing procedures be promulgated by rule in accordance with the Florida Administrative Procedure Act in order for test results to be admissible -- Order reversed.  State v. Eason, No. 03-00058 APANO (Fla. 6th Cir. App. Ct. May 3, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

STATE OF FLORIDA,

                        Appellant,

vs.                                                                                            Appeal No. CRC 03-00058 APANO

                                                                                                 UCN522003AP000058XXXXCR

CASSAUNDRA EASON,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Order Denying Motion in Limine

Pinellas County Court

Judge Thomas B. Freeman

 

Erin K. Barnett, Esquire

Attorney for Appellant

 

Danelle G. DeBerg, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by the State of Florida (State), from the Order Denying State’s Motion in Limine (Order), entered August 7, 2003.  Upon review of the briefs, the record, and being otherwise fully advised, the Court reverses the Order as set forth below.

            The record shows that on October 5, 2002, the Appellee/Defendant, Cassaundra Eason (Eason) was arrested and charged with DUI.  On the morning of trial, August 7, 2003, the State filed two motions in limine.  The State’s Motion in Limine One sought to exclude Eason’s medical records.  The trial court denied this motion as untimely.  The State’s Motion in Limine Two sought a ruling on the admissibility of Eason’s urine toxicology report.  The State argued that Eason voluntarily provided a urine sample and that the sample was not taken pursuant to the implied consent law.  Without taking testimony or evidence, the trial court ruled that the urine toxicology report was inadmissible pursuant to State v. Bodden, 27 Fla. L. Weekly D2382 (Fla. 2d DCA Oct. 30, 2002), wherein the Second District held that urine test results collected pursuant to Florida’s implied consent law were inadmissible.

            The State appeals only the trial court’s ruling on its Motion in Limine Two, denying the State’s request to admit Eason’s urine toxicology report.  The State argues that the trial court erred in refusing to hear argument or testimony in support of the State’s Motion and that the trial court erred in suppressing the toxicology report since the urine sample was taken voluntarily.  The trial court made no factual findings, rather ruled, as a matter of law, that as long as a driver has a Florida driver’s license, he or she is subject to Florida’s implied consent law and the urine test results are inadmissible under Bodden.  As the ruling consists of a pure question of law, the standard of review is de novo.  See State v. Glatzmayer, 789 So.2d 297, 301 (Fla. 2001).

            In addressing the first issue, the Court finds that the trial court committed reversible error.  A person arrested for DUI may volunteer to give a sample of his or her urine for chemical testing purposes apart from the implied consent law.  See State v. Slaney, 653 So.2d 422, 426 (Fla. 3d DCA 1995); see also State v. Masters, No. CTC02-1755BNPANC (Fla. Pinellas Cty. Ct. June 6, 2003).  Further, the question of voluntary consent is necessarily a question of fact for which the trial court must consider the totality of the circumstances.  See State v. Ramirez, 850 So.2d 620, 624 (Fla. 2d DCA 2003)(finding that voluntariness is a question of fact to be determined from all of the circumstances).  Although counsel on both sides presented argument of their respective positions, argument of counsel is not a substitute for properly introduced evidence.  See Abichandani v. Related Homes of Tampa, Inc., 696 So.2d 802, 803 (Fla. 2d DCA 1997).

            The Court finds that the State’s second issue is moot, as the Florida Supreme Court has recently overturned the Second District’s holding in Bodden.  See State v. Bodden, 2004 WL 792826 (Fla. April 15, 2004).  The Florida Supreme Court held that the implied consent law does not require that urine testing procedures be promulgated by rule in accordance with the Florida Administrative Procedure Act in order for the test results to be admissible.  Accordingly, the Order must be reversed and this cause remanded for the trial court to reconsider the State’s Motion in Limine Two.

            It is therefore, 

            ORDERED AND ADJUDGED that the Order Denying State’s Motion in Limine is reversed and this cause is remanded for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of May 2004.

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

 

 

 

Copies furnish to:

 

Judge Thomas B. Freeman

 

Erin K Barnett, Assistant State Attorney

 

Danell G. DeBerg, Esquire

1915 Tryone Boulevard

St. Petersburg, FL  33710