County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — Officer had reasonable cause to believe that Appellee was driving under the influence when he ordered a blood draw after Appellee had caused a traffic accident and was unconscious.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. Lee Allen Shorey, No. CRC09-001587-CFAES (Fla. 6th Cir. App. Ct. October 27, 2010).

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 PASCO COUNTY

APPELLATE DIVISION

STATE OF FLORIDA,

Appellant,

UCN: 512010CF000445A000ES

v. Case No: 2010-0445-CFAES

Lower No: 07-264454WTES

LEE ALLEN SHOREY,

Appellee.

________________________________/

Appeal from Pasco County Court

County Judge Robert P. Cole

Matthew O. Parrish, A.S.A.

for Appellant

Todd Thurow, Esq.

for Appellee

ORDER AND OPINION

The State appeals the trial court’s order granting Appellee’s motion to suppress the results of a blood draw. The sole issue on appeal is whether the officer had reasonable cause to believe that Appellant was driving under the influence. We find that the officer did. This Court reverses the trial court’s order as set forth below.

FACTUAL BACKGROUND

Officer Wainwright responded to a traffic crash May 28, 2007 at Fifth Avenue and 301. Three cars were involved in a rear-end collision. Appellee rear-ended the car in front of him, and that car hit the car in front of it. A witness observed Appellee trying to leave the scene, but passing out while he was trying to reverse his vehicle. When Officer Wainwright arrived, Appellee was unconscious and being treated by EMT. Appellee was unconscious the entire time that Officer Wainwright was on the scene. Officer Wainwright testified that in his experience, drivers are unconscious at the scene of traffic crashes due to injuries, alcohol, or narcotics. In this case, there was no sign of Appellee having been injured from the crash. The EMTs advised Officer Wainwright that Appellee smelled of alcohol on his breath. Officer Wainwright concluded that Appellee’s state of unconsciousness was from the alcohol, not injuries. He asked the paramedic on the scene to draw Appellant’s blood.

When the paramedics arrived, Appellee was unresponsive in the driver’s seat of his car, which had moderate to minor front-end damage. One paramedic was directed to treat only Appellant. Once the paramedic established that Appellee was unresponsive, but his airway and basic life support intact, Appellee was immobilized and extricated from the car. Appellee had no obvious traumatic injury, no bleeding, and no swelling. As Appellee was being immobilized and extricated, the paramedic detected an odor of alcohol on his breath, which he revealed to Officer Wainwright. The paramedic performed the blood draw on Appellee while he was still unconscious in the ambulance before being transported to the hospital.

Appellee was charged with Driving while Under the Influence. Appellee filed a motion to suppress the blood results. After a hearing, the trial court granted Appellee’s motion finding that (1) the officer did not have a clear indication or probable cause that a DUI had been committed and (2) the blood draw did not follow the requirements of 316.1932(1). The State filed a timely notice of appeal on January 25, 2010.

LAW AND ANALYSIS

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).

In this case, Officer Wainwright ordered a blood draw from Appellee when he was unconscious after having rear-ended another car. Florida Statute 316.1932(1)(c) controls when blood can be drawn from a defendant in cases such as here that do not involve death or serious bodily injury. Furthermore, implied consent standards do not apply because Appellee was unconscious at the scene when the blood was drawn. State v. Sambrine, 386 So. 2d 546 (Fla. 3d DCA 1980); State v. Zeigler, 6 Fla. L. Weekly Supp. 684a (Fla. 17th Cir. Ct. 1999). Thus, no warning of the consequences of refusal could be given at the time.

Section 316.1932(1)(c) states that a person who accepts the privilege of operating a motor vehicle is deemed to have granted their consent for a blood draw when (1) there is reasonable cause to believe the driver was operating a vehicle under the influence; (2) the driver appears at a hospital, clinic, or other medical facility; and (3) an administration of a breath or urine test is otherwise impracticable or impossible. The statute acknowledges that ambulances or other emergency vehicles, such as the one where defendant was treated, qualify as a “medical facility.” The fact that Appellee remained unconscious throughout the entire investigation demonstrates that a breath or urine test would have been impossible or impracticable. Therefore, the sole issue on appeal is whether the officer had reasonable cause to believe Appellee was operating a vehicle under the influence to justify ordering a blood draw at the scene.

At the hearing on the motion to suppress, Officer Wainwright testified to his six years of experience as a police officer who had investigated more than 100 traffic cases. Based on his knowledge and experience, drivers found unconscious after an accident had either suffered traumatic injury or were influenced by alcohol or narcotics. In this case, Officer Wainwright observed no signs of injury to the driver, and the vehicle showed no signs of damage consistent with personal injury. There was no evidence that Appellee had suffered any physical injury, let alone traumatic injury. Officer Wainwright also conferred with the paramedic, who had independently reached the same conclusion based on his own knowledge and experience. The paramedic did not observe any signs of physical injury or trauma to explain Appellee’s unconsciousness, but did smell alcohol emanating from his breath. Based on the totality of the circumstances, Officer Wainwright had sufficient reasonable cause to believe that Appellee was driving under the influence, and was thus justified in the ordering of a blood draw.

“To establish probable cause, an officer may rely on information provided at the scene by other law enforcement officers and by emergency personnel.” State v. Catt, 839 So. 2d 757 (Fla. 2d DCA 2003). Officer Wainwright was justified in relying on statements made from the paramedic treating Appellee. It was unnecessary for Officer Wainwright to enter the ambulance and personally observe him. Based on his personal investigation and information provided by the paramedic, Officer Wainwright had sufficient reasonable cause to order the blood draw from Appellee. Since Officer Wainwright was in compliance of § 316.1932(1)(c), the motion to suppress should have been denied. Therefore, it is

ORDERED that the trial court’s order granting Appellee’s motion to suppress is hereby REVERSED and the case REMANDED for proceedings consistent with this opinion.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 27^th day of October 2010.

Original order entered on October 19, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.