County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress -  Sufficient evidence existed to show officer had probable cause to order forcible blood draw where officer testified that his investigation revealed the driver missed the turn in the road-officer could smell the odor  of alcohol and noticed the one eye that was open was bloodshot and watery- EMS told the officer that appellee had severe head trauma and were concerned about brain injury-EMS advised officer that they wanted to bayflight the driver to the hospital- Order reversed. State v. Heater, No. 053604CFAES (Fla. 6th Cir. Ct. February 15, 2006).  

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA, 

            Appellant,

 

v.                                                                                 Appeal No: 053604CFAES

                                                                                    Lower No: CTC04110147JTES

BRIAN HEATER, 

            Appellee.

____________________/

 

 

 

 

County Judge Robert P. Cole

 

Nathan D. Brewer, A.S.A.

Attorney for Appellant

 

James A. Wardell, Esq.

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the state's appeal of the trial court's order granting defendant's motion to suppress.  After reviewing the briefs and record, this Court reverses the decision of the trial court. 

            Appellee was charged with Driving Under the Influence ("DUI")  on May 23, 2004.  On September 13, 2004, the appellee filed a Motion to Suppress the results of the blood draw.  The Motion to Suppress was set for hearing on October 5, 2004.  On October 5, 2004, Trooper Sessa was running late to the hearing on the motion and the court granted the Motion to Suppress due to the tardiness of Trooper Sessa.  On October 8, 2004, the trial court entered an order granting appellee's motion to suppress. The appellant filed a Notice of Appeal claiming the trial court abused its discretion by granting the appellee's motion to suppress.  This Court entered an opinion on April 27, 2005, reversing the lower court's order and remanded the case for further proceedings. On May 19, 2005, the appellee again filed his Motion to Suppress.  The motion was heard on June 14, 2005. 

            At the hearing, Trooper Sessa testified that he responded to the scene of a motorcycle crash on the Ehren Cutoff, 583, on May 23, 2004. He testified that when he arrived on the scene he observed a gentleman on the ground, being treated by EMS, and a motorcycle laying on its side in the grassy area off the east side of the shoulder of the road. He explained that he made contact with a witness, Lisa McCloud,  who approached him and said she saw the accident.  He testified that McCloud stated to him that she was following the motorcycle.  She told him that the curve in the road went to the left but the motorcycle didn't turn, it just went straight ahead into the ditch.  He was told that the traveler was ejected and went airborne and landed face down in the ditch.  She also told him that the motorcycle went further and flipped several times.  Sessa testified that McCloud told him that the person she saw riding the motorcycle was the same person that was laying on the side of the road.  McCloud also told him that she never left the scene.  He was able to ascertain that the appellee did not move or go anywhere since he came to a final rest.  Sessa testified that he responded to where the appellee was lying and once he got there, EMS was treating appellee for an injury to his face and to his arm.  Sessa testified that he was able to observe that appellee had severe head trauma to the left side of his face.  Sessa testified that he did speak to the EMS personnel treating appellee and they told him that the appellee had severe head trauma and that they were concerned about brain injury. Sessa testified that EMS insisted he be taken to the hospital by bayflight. At the time Sessa arrived on the scene, appellee refused treatment and was not willing to go to the hospital.  Sessa testified that there was an ambulance present, however, appellee was not moved to the ambulance until after Sessa talked him into getting treated for his injuries.  At that point, appellee did consent to go to the hospital.  EMS put him in the back of the ambulance and took him out to the landing zone where the chopper would be landing.  They continued to treat him in the back of the ambulance.  Appellee was back there for about ten to fifteen minutes. Sessa was then asked "[w]hile he was in the back of the ambulance, did you talk to Mr. Heater about possibly taking a sample of his blood?" and he replied "[y]es.  I told him I was now conducting a criminal investigation of a DUI due to me smelling an alcoholic beverage upon his breath and due to-- the one eye I could see was bloodshot and watery --asked him--due to the circumstances of his injuries that a breath and urine test was impossible at the time; that I was asking him to take a blood test."  Sessa testified that he then read appellee his Miranda warnings and implied consent.  The prosecutor then asked "[a]nd did you explain to him that the reason why you were asking for blood instead of breath or urine was because bayflight was on its way and he couldn't  go anywhere?" and Sessa replied "[c]orrect." Sessa also acknowledged he not only read the Implied Consent form, but explained Implied Consent to appellee in laymen's terms.  The trooper then testified that the appellee agreed to give blood stating "[t]hat's fine." Sessa explained that the appellee tried to sign the consent form in the blood kit, but due to his injury to his right arm he could not sign it. The trooper stated that there were other people around that witnessed the defendant's consent to the blood test; a Pasco County deputy with the sheriff's office and two EMS personnel. Sessa testified that he had those persons sign the consent form.  The consent form was admitted into evidence.

            On cross examination Sessa admitted that the smell of alcohol on the appellee and the one bloodshot eye was the only information he had that would have given him any suspicion that the accident may have been alcohol related.

            The state had no further witnesses and the defense made argument that based on Sessa's testimony alone, the witness was not capable of giving informed consent due to the injuries. The defense then called the defendant, Brian Heater to testify. He stated that he did not remember the accident but did remember waking up in the hospital.  He testified that he did not have any recollection of talking to Trooper Sessa and consenting to a  blood draw. He also testified that he did not recall Sessa asking him questions about the blood draw and/or consent. The appellee testified that he was right handed but did not suffer any right arm injuries. 

            The court heard argument. The defense argued that the appellee was not in a position to consent.  The defense went on to say "[y]our honor, the basis of this whole blood draw was the consent.  This isn't a case where they're claiming that was --established serious bodily injury and it was a forced draw.  It's based 100 percent on the consent.  . . . [w]ithout injuries to some other person, the state was not in a position to try to obtain a voluntary consent from him, in the state that he was in." The state responded by arguing that there are three ways in which blood could be taken: a forcible blood draw, Implied Consent, and consent. The state argued that here, all three applied and the state was not restricted to proceed only under consent since the standard was whether or not any one of them applied.

            The trial court entered an order on June 24, 2005,  with the following findings: (1.) Trooper Sessa testified he arrived at a crash scene where a motorcycle driven by the appellee had crashed; (2.) Trooper Sessa says the appellee had severe head trauma and the EMT on scene said the injuries were life threatening and wanted to Bayflite the defendant; (3) The appellee testified he had no recollection of the accident except he had severe injuries to his face, had a broken nose and palate and spent there days in the hospital; (4)Trooper Sessa says that while in the ambulance the appellee consented to a blood draw but couldn't sign the consent; and (5.) The defendant, according to Trooper Sessa, had a smell of alcohol and one eye was bloodshot.  The court found (1) The condition of the appellee precluded a voluntary waiver or consent to draw blood; and

(2.) The trooper did not have probable cause to believe the appellee was intoxicated based upon the smell of alcohol and one bloodshot eye when the appellee had severe head trauma from the accident.  F.S. 316.1933(1)(a).

             To order blood to be drawn pursuant to statute authorizing compelled blood tests for impairment or intoxication, 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 serious bodily injury.[1]  F.S. 316.1933. In this case, the officer testified that upon arriving on the scene, he learned that the driver missed the turn in the road, and instead went straight into a ditch.  During the investigation, he had an opportunity to speak with the driver.  He testified that he could smell the odor of alcohol and noticed the one eye that was open was bloodshot and watery.  The trooper also testified that EMS told the trooper that appellee had severe head trauma and that they were concerned about brain injury and wanted to bayflight the driver to the hospital. This Court finds that the circumstances present gave Trooper Sessa ample reason to believe that the appellee was under the influence of alcohol and had caused serious bodily injury.[2] State v. Brown,  725 So. 2d 441 (Fla. 5th DCA 1999)(sufficient probable cause where the trooper observed  strong odor of alcohol on appellee's breath, appellee's eye was bloodshot and watery and the trooper had knowledge that the appellee had driving his vehicle erratically to the point of losing control and leaving the roadway without cause);  State v. Cesaretti, 632 So. 2d 1105 (Fla. 4th DCA 1994)(probable cause where only indicia of defendant being under the influence was that paramedics advised the officer that they smelled odor of alcohol on defendant's breath); Jackson v. State, 456 So. 2d 916 (Fla. 1st DCA 1984)(probable cause defendant under the influence where trooper responded to emergency room of hospital and smelled odor of alcoholic beverage on defendant's breath while he was lying in a hospital bed);   State v. Catt, 839 So. 2d 537 (Fla. 2d DCA 2003)(two officers smelled alcohol  on defendant's breath; sufficient to support a finding of probable cause regarding element of being under the influence). 

 

IT IS THEREFORE ORDERED that the ruling of the trial court be REVERSED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __

day of February,  2006.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies to:

Office of the State Attorney

James A. Wardell, Esq

Judge Robert P. Cole


[1] It should be pointed out, as argued by appellant, the analysis was not restricted to the issue of consent simply because the officer proceeded on the basis of consent. 

[2] FS 316.1933(1)(b) defines serious bodily injury as "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." (Emphasis added.)