NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
RANDALL LEE DAULT
Appellant,
v. Appeal No. CRC 06-42 APANO
UCN522006AP00042XXXXCR
STATE OF
Appellee.
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Opinion filed ___________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
Honorable John Carballo
County Court Judge
Larry Sandefer, Esquire
Attorney for appellant
Andrew Taylor, Esquire
Assistant State Attorney
ORDER AND OPINION
THIS MATTER is before the Court on
the defendant, Randall Dault’s, appeal from a judgment and sentence entered
against him by the
The defendant was involved in an accident in which his SUV had flipped over. When the deputy arrived at the scene, he saw the defendant on a stretcher being treated by paramedics. The deputy noted there were minor injuries, but also smelled a strong odor of alcohol on the defendant’s breath. The defendant was transported by the paramedics to the hospital. The deputy arrived at the hospital about a half an hour later. There he observed the defendant was on a gurney, immobilized, wearing a neck brace, and appeared to be in pain. The deputy testified that in his opinion the defendant would be there for several hours, or even be admitted into the hospital. The deputy testified that the defendant at that time could not take a breath test. At that point the deputy had been at the hospital for forty minutes. The deputy then read the defendant the implied consent form and asked him to submit to a blood test, and the defendant agreed.
The defendant contends that the deputy’s decision to require a blood test was improper. He argues that the deputy did not ask the hospital personnel how long the defendant would be at the hospital; therefore, his decision to ask the defendant to take a blood test was premature and unreasonable. This Court disagrees.
Florida Statute §316.1932(1)(c) allows the withdrawal of a blood sample when
the police have probable cause to suspect the defendant is DUI, the defendant has appeared at a hospital, and it is impractical or impossible to get a breath sample within a reasonable time. The first two conditions have been met in this case; at issue is whether or not it was impractical or impossible for the defendant to take a breath test within a reasonable time.
The deputy’s decision that it was impractical to ask the defendant to take a breath test at the time is supported by the evidence. Although the defendant called his girlfriend and had her pick him up from the hospital within twenty minutes from taking the blood test, it was not unreasonable for the deputy to conclude from his observations that the defendant was not, nor would be in the immediate future, capable of taking a breath test. The defendant’s demand that the deputy intrude and ask busy emergency personnel when the defendant could take a breath test, or when he would be released, before the deputy could conclude a breath test is impractical and not reasonable.
Contrary to the defendant’s assertion, the trial court did not make a blanket rule that a breath test in an emergency room is always impractical. The trial court merely determined that in this particular case it was impractical to take a breath test of this particular defendant. The trial court’s decision was proper.
IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.
ORDERED
at
__________________________
Linda R. Allan
Circuit Court Judge
____________________________
R. Timothy Peters
Circuit Court Judge
___________________________
John A. Schaefer
Circuit Court Judge
cc: Office of the State Attorney
Honorable John Carballo
Larry Sandefer, Esquire