County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — Since law enforcement improperly read implied consent, Appellee did not knowingly and voluntarily give actual.  Trial court’s order granting motion to suppress is affirmed.  State of Florida v. David Michael Griffith, No. CRC10-001308-CFAES (Fla. 6th Cir. App. Ct. May 16, 2011).

 

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:              512010CF001308A000ES

v.                                                                     Case No:       CRC1001308CFAES

                                                                        Lower No:    09-0582XBZTES

 

 

DAVID MICHAEL GRIFFITH,                                           

                        Appellee.                                                      

_____________________________/

Appeal from Pasco County Court

County Judge Robert P. Cole

 

Kenneth V. Compton, A.S.A.

for Appellant

 

Todd Thurow, A.P.D.

for Appellee

 

 

 

 

ORDER AND OPINION

 

            The State appeals the trial court’s order granting Appellee’s motion to suppress.  The State argues that Appellee voluntarily consented to a blood draw, rendering the implied consent law inapplicable.  This Court finds that Appellee did not knowingly and voluntarily give actual consent.  Therefore, this court affirms the trial court’s order as set forth below.

FACTUAL BACKGROUND

Trooper Christopher Kraus was working in a marked patrol vehicle on State Road 54, east of U.S. 41, on October 26, 2009 around 3:30 p.m. when he was dispatched to a two-vehicle car crash.  Upon his arrival, Appellee was already loaded up on a backboard in an ambulance.  Trooper Kraus asked the paramedics whether Appellee was injured, and they responded that they believed he was extremely intoxicated.  The paramedics took Appellee to the hospital due to his extreme intoxication.  Trooper Kraus testified that Appellee was not injured—only incredibly intoxicated—and was being taken to the hospital for medical clearance.

The victim told Trooper Kraus that Appellee was all over the road before colliding into his vehicle.  Appellee’s car had front-end damage, and the victim’s bigger box truck had minor damage on the right rear.  After the collision, they pulled into the Wal-Mart parking lot.  The victim exited his vehicle.  At that time, Appellee vomited near his driver’s door.  The ambulance arrived shortly thereafter.  No alcohol was found in the vehicle; however, Appellee admitted to drinking five beers during the crash investigation. 

Trooper Kraus first came into contact with Appellee at University Community Hospital.  Appellee was sleeping on a gurney pushed up against a wall in the hallway.  Trooper Kraus returned to his car to get a blood kit.  By the time Trooper Kraus returned, Appellee had been moved to a room.  Appellee was awake, and his parents were with him.  He had a strong odor of alcohol and bloodshot, watery eyes. 

Trooper Kraus informed Appellee that he had completed his traffic investigation and was now conducting a DUI investigation.  Trooper Kraus asked Appellee for a voluntary blood draw.  After Appellee declined, Trooper Kraus read implied consent, informing Appellee that if he did not submit to the blood draw that his driver’s license would be suspended.  Appellee’s parents were in the room and could hear their entire conversation.  They tried to persuade Appellee to do the right thing and go along with it.  After Appellee’s parents talked to him, they convinced Appellee to give a voluntary blood draw. 

An implied consent warning document was completed.  Trooper Kraus checked the box for blood test.  On the portion that asks whether the individual will take the test, Trooper Kraus marked the box that said “yes,” but then crossed it out, checked the box that said, “no,” and initialed it.  At the bottom of the form, after the implied consent portion was read, Trooper Kraus crossed out and initialed both boxes that indicated whether or not the individual still refused to submit to the blood test.

Trooper Kraus did not order the blood draw, since Appellee consented voluntarily.  Trooper Kraus further testified that he could not demand a breath test because Appellee was not under arrest, and he could not demand a urine test. Appellee was never informed that the blood test was an alternative to a breath or urine test.  Trooper Kraus did tell Appellee that he did not have to submit to it.  Trooper Kraus had Appellee sign the standard voluntary consent form that was inside the blood draw kit.  Appellee did not ask any questions about it or seek any clarification.  Trooper Kraus was seeking blood based on his observations made during the DUI investigation.  He did not ask Appellee to perform any field sobriety exercises because he was hospitalized.     

Appellee’s blood was taken by a nurse at the hospital who was in uniform with a name badge.  The blood results came back at around 0.3.  Appellee’s ability to drive would have been very poor at that level.  Appellee was not arrested that night, but was informed that charges would be filed.  Appellee was Baker Acted that night because he stated that he could not take it anymore and wanted to end his life.   

On October 26, 2009, Appellee was charged with DUI.  Appellee filed a motion to suppress evidence obtained from a blood sample, which was granted by Judge Cole on February 18, 2010.  The State filed a timely notice of appeal on March 3, 2010.

 

 

 

LAW AND ANALYSIS

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).  It presents a mixed question of law and fact. Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998).  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).

The State argues that the trial court erred by granting Appellee’s motion to suppress results of the blood draw taken from Appellee, as Appellee voluntarily consented to the blood draw, rendering the implied consent law inapplicable.  While this Court agrees that an implied consent analysis does not apply when there was actual, voluntary consent, this Court finds that Appellee did not knowingly and voluntarily give actual consent.  As such, the trial court properly denied Appellee’s motion to suppress the results of the blood draw.

In circumstances where it is more convenient for a person to submit to a blood test, as in this case, there is no reason to exclude such results if the person knowingly and voluntarily consented.  Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988).  Here, the trial court made no ruling on the voluntariness of Appellee’s consent, exclusively focusing on an implied consent analysis.  Nevertheless, there is no evidence that Trooper Kraus intimidated or coerced Appellee unless the implied consent warnings were improperly given.  Where there is no basis for a law enforcement officer to require an individual to give a blood sample, nor to advise the individual that he would lose his driver’s license if he failed to consent to the withdrawal, the resulting consent is deemed involuntary in nature since it was induced by misrepresentation.  State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995).  Since Appellee initially refused to submit to a blood draw, but changed his mind after being advised of the implied consent warnings, the question becomes whether Trooper Kraus had a legal basis to advise Appellee that he would lose his driver’s license if he failed to give consent.

Florida Statute 316.1932 lays out the requirements for a blood draw under implied consent.  A blood draw may only be made under implied consent if (1) there is reasonable cause to believe the individual was driving or in actual physical control of a his vehicle while under the influence of alcoholic beverages or chemical or controlled substances; (2) the individual appears for treatment at a hospital, clinic, or other medical facility; and (3) the administration of a breath or urine test is impractical or impossible.  Fla. Stat. 316.1932(1)(c).  Trooper Kraus clearly had reasonable cause to believe that Appellee had been driving while under the influence of an alcoholic beverage.  Appellee was swerving before causing an accident with another vehicle, Appellee had a strong odor of alcohol when Trooper Kraus encountered Appellee at the hospital, and the paramedics informed Trooper Kraus of Appellee’s apparent extreme intoxication.  The statute only requires that the individual appear for treatment; it does not state that the treatment must be for treatment of injuries actually sustained in the accident.  Appellee was taken to the hospital for treatment, albeit for his intense intoxication, rather than for injuries, which nonetheless met the statute’s requirements.  Therefore, the first two elements were met to justify the trooper’s reading of implied consent.

The last element, whether a breath or a urine test was impractical or impossible, remains.  Florida Statute 316.1932(1)(b) specifies in pertinent part that any person who accepts the privilege of driving is deemed to have consented to “a urine test for the purpose of detecting the presence of chemical substances…or controlled substances….”  Furthermore, the Florida Supreme Court has noted that “the goals of the breath and blood tests are different from the goals of urine testing.  Breath and blood tests detect alcohol content, whereas urine tests detect controlled substances.”  State v. Bodden, 877 So. 2d 680, 689 (Fla. 2004).  Based on the wording of the statute and the determination by the Florida Supreme Court, urine testing would have been useless under the facts of this case since neither chemical nor controlled substances were suspected.  Urine testing is not for the purpose of detecting alcohol, rendering it impractical to have Appellee submit to such a test.  The record, however, is completely lacking any evidence that a breath test was impractical or impossible.  With no evidence that a breath test was impractical or impossible, the third element that would justify the trooper’s reading of the implied consent warning is missing. 

Since no evidence was presented to demonstrate that a breath test was impractical or impossible, we cannot say that the implied consent warnings were appropriate.  No evidence, let alone substantial, competent evidence, was presented to support whether Trooper Kraus had a legal basis to advise Appellee of the implied consent warnings.  Had evidence been presented to show the impracticability or impossibility of a breath test, then the consent could have been considered voluntary as implied consent would have been applicable.  Without such evidence, Appellee’s consent must be deemed involuntary as the legal equivalent of coercion.  See, State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995).  It is therefore,  

                         

            ORDERED AND ADJUDGED that the trial court’s order on Appellee’s motion to suppress is hereby AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 16th day of May 2011.

Original order entered on May 16, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.