County Criminal Court: CRIMINAL LAW – Breath/Blood/Urine Test --- Blood test was proper under implied consent law where defendant who appeared to be under the influence appeared for treatment at a hospital, and there was evidence that a breath test was impractical or impossible. Under these circumstances voluntariness of consent is not at issue. Judgment and sentence affirmed. Vaughn v. State, No. CRC 06-16 APANO, (Fla. 6th Cir. App. Ct. Feb. 21, 2008).

 

 

                        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 PINELLAS COUNTY

 

 

PETER DAVID VAUGHN

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 06-16 APANO

                                                                        UCN522006AP000016XXXXCR

STATE OF FLORIDA

 

            Appellee.

_________________________________/

 

 

Opinion filed _____________________.

 

 

Appeal from a decision of the

Pinellas County Court

County Judge William H. Overton

 

Marc Pelletier, Esq.

Attorney for appellant

 

Jason Thomas, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Demers)

 

            THIS MATTER is before the Court on the defendant, Peter David Vaughn’s, appeal from a decision of the Pinellas County Court denying his motion to suppress. The defendant pleaded no contest to DUI charges, specifically reserving his right to appeal the denial of his motion to suppress. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            The police were called to a two-vehicle accident scene. The defendant admitted to driving one of the vehicles. A deputy conducting the investigation noticed the defendant had signs of impairment. The defendant admitted drinking. The defendant was taken to the hospital for his injuries, including injuries to his face, to be treated. The deputy determined that it was impractical to take a breath test, so he asked the defendant to take a blood test. He read the defendant implied consent. As part of the conversation, the deputy told the defendant that if he did not take the blood test, the defendant would be arrested. Ultimately, the defendant consented to take the blood test. The defendant attempted to have the results of the blood test suppressed, but the trial court denied his motion. The defendant is seeking review of that decision.   

“Appellate review of a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial court’s application of the law to the facts.” Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000). “A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, so long as those findings are supported by the record. However, a suppression order that turns on an issue of law is reviewed by a de novo standard of review.” Underwood v. State, 801 So.2d 200 (Fla. 5th DCA 2001).

            No one is disputing the trial court’s findings that the police had reasonable cause to believe the defendant was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages, that he appeared for treatment at a hospital, and that there was cause to believe the administration of a breath test within a reasonable time was impractical or impossible. Generally, when these findings are made, the results of the blood test are admissible. See §316.1932(1)(c), Fla. Stat. (2006); State v. Hilton, 498 So.2d 698 (Fla. 5th DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987); State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000).

            The defendant claims that his consent to take the blood test was improperly obtained because the deputy essentially gave him a choice of either taking the blood test or going to jail. This Court, however, need not reach the voluntariness of consent argument because the blood test was properly administered under the implied consent law. The appellate court in the case of State v. Slaney, 653 So.2d 422 (Fla. 3d DCA 1995) recognized that voluntary consent is only important when the blood test is not authorized by the implied consent law. The validity of the police action under implied consent is not affected by the officer’s statement that if the defendant did not take the blood test he would take him to jail. That is not a misstatement of law. In fact, it is not a misstatement at all. If, perhaps, the State were relying upon voluntary consent to get the results of the blood test into evidence then that might be a different situation. But that is not at issue in the case at bar.

            The appellant also argues that a different appellate panel of this Court has already decided the issue. The appellant appears to be attempting to invoke the doctrine of issue preclusion. That doctrine, however, is inapplicable. In Cook v. State, 921 So.2d 631,642 (Fla. 2d DCA 2005), the appellate court noted that: “the doctrine of issue preclusion does not preclude the relitigation in a criminal proceeding of an issue that was previously determined at an administrative-license-suspension hearing.” (Internal quote marks and citation omitted).  In Vaughn v. State of Florida, DHSMV, No. 05-94AP -88A (Fla. 6th Cir. App. Ct. March 20, 2006), the circuit court sitting in its appellate capacity was only addressing the administrative-license-suspension hearing. Nothing decided in that proceeding, at either the initial or certiorari level, has any preclusive effect in this subsequent criminal DUI proceeding.

            This Court notes that there was more information about the events in question presented in the criminal proceeding than was presented to the hearing officer during the administrative-license-suspension hearing. In addition, the proceedings are significantly different. The hearing officer has only the officer’s affidavit and some testimony. In a motion to suppress hearing in a criminal proceeding, much more testimony is frequently presented. That was certainly the case here. There was more than sufficient evidence to support the trial court’s findings in the case at bar.

            IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of August, 2007.

 

                                                                        ___________________________

                                                                                    David A. Demers

                                                                                    Circuit Judge

 

 

 

                                                                        ____________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Judge

 

 

 

                                                                        ____________________________

                                                                                    Irene H. Sullivan

                                                                                    Circuit Judge

 

cc:        State Attorney

 

            Marc Pelletier, Esq.

 

            Judge William Overton

 

ORDER DENYING DEFENDANT’S MOTION FOR REHEARING

 

            THIS MATTER is before the Court on the defendant’s Motion for Rehearing. The motion is denied.

            The record does not support the suggestion that the officer’s comment that the defendant would go to jail if he did not submit to a blood test was “inextricably commingled with the reading of implied consent.” Regardless of whether or not the officer made that statement to the defendant, it did not vitiate the defendant’s duty to provide a blood sample under the implied consent law because it was not a misstatement of law. Instead, the officer had probable cause and could have taken the defendant to jail.

            The defendant did not have to provide consent. He had already done that when he accepted the privilege of driving in the State of Florida and the other terms of the Implied Consent Law were met. He may refuse and suffer the consequences, including suspension and criminal prosecution, but make no mistake about it he has consented as a matter of law.

            There is no conflict between the opinion in this case and the opinion in the administrative license suspension. In the administrative proceeding the respondent argued that the blood sample was improperly drawn under the implied consent law because it was not impossible or impractical for the defendant to provide a blood sample. Therefore, the sample could not be properly secured under the Implied Consent Law and the only way the test results could be admissible is if the defendant voluntarily consented.

            In the case at bar the trial judge found that it was impossible or impractical to administer a breath sample; therefore, the blood sample was properly secured under the Implied Consent Law. The defendant never argued that this decision about the application of Implied Consent was error. Consequently, there is no need for this Court to determine if the defendant voluntarily consented.

            This position is consistent with State v. Slaney, 653 So.2d 422, 431 (Fla. 3d DCA 1995), where the court said: “Because the blood sample taken from the defendant in this case was entirely authorized under section 316.1932(1)(c), 316.1933 Florida Statute (1991), and was otherwise involuntarily given, it is plain that this blood sample and the results of the scientific test performed on this sample were admissible.” In the case as bar, the sample was clearly authorized, and the defendant does not contend otherwise. Therefore, the voluntariness of consent does not matter.

            IT IS THEREFORE ORDERED that the defendant’s motion for rehearing is denied.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2008.

            ___________________________                  _______________________

                        David A. Demers                                            Robert J. Morris, Jr.

                        Circuit Judge                                                   Circuit Judge                                                                                                                                      

                                                ____________________________

                                                            Irene H. Sullivan

                                                            Circuit Judge

cc:        State Attorney

            Marc Pelletier, Esq.

            Judge William Overton