Gillman v. State
| Decision Date | 06 July 1979 |
| Docket Number | No. 78-1084,78-1084 |
| Citation | 373 So.2d 935 |
| Parties | Teddy Dale GILLMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, Bartow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
On this appeal from his convictions for vehicular homicide and causing a death by operation of a motor vehicle while intoxicated, appellant Gillman raises two questions:
1) Whether the trial judge erred in admitting into evidence the blood sample and blood alcohol test results when the sample was not taken in strict compliance with Section 322.261(2)(b), Florida Statutes (1977), and
2) Whether appellant's sentence must be vacated where the sentencing judge imposed a more severe sentence because appellant elected to stand trial rather than plead guilty.
We answer both questions in the affirmative and therefore reverse.
Will Grimes, an employee of Lakeland General Hospital, testified that he withdrew a blood sample from appellant at the request of a police officer at 3:45 A.M. on the night of the accident which led to the instant charges against appellant. The accident occurred at approximately 11:45 P.M. Murle Bozette, the biochemist who analyzed the sample, testified that the blood alcohol level in the sample was .11%, and Dr. Robert Smith, a pathologist and expert in the field of toxicology, opined on the basis of the blood alcohol level in the sample that appellant's blood alcohol level at the time of the accident would have been approximately .18%. An individual is presumed to be intoxicated if his blood alcohol level is .10% Or higher. Section 322.262(2)(c), Florida Statutes (1977).
The two state troopers who investigated the accident and another witness present at the scene testified that they smelled alcohol on appellant's person shortly after the accident occurred. Appellant's wife, who was with him most of the evening, and appellant conceded that he had drunk as many as four beers during the course of the evening. However, appellant denied being intoxicated that evening, and there was no further evidence tending to indicate intoxication.
The testimony of Grimes and Bozette, together with a letter from the Department of Health and Rehabilitative Services (HRS) submitted by Grimes, indicated that Grimes had been authorized by HRS to work in the capacity of a clinical laboratory technologist. However, Grimes had not been licensed by the State of Florida as a clinical laboratory technologist or clinical laboratory technician because he had yet to complete the requirement that he work for one year after completion of his technical training.
Section 322.261(2)(b), Florida Statutes (1977) provides:
Only a physician, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician, acting at the request of a peace officer, may withdraw blood for the purpose of determining the alcoholic blood content therein.
Section 322.262 provides in pertinent part:
(2) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages, when affected to the extent that his normal faculties were impaired, the results of any test administered in accordance with § 322.261 and this section shall be admissible into evidence when otherwise admissible . . . .
(3) Chemical analyses of the person's blood or breath, in order to be considered valid under the provisions of this section, must have been performed according to methods approved by the Department of Health and Rehabilitative Services and by an individual possessing a valid permit issued by the department for this purpose. The Department of Health and Rehabilitative Services is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the Department of Health and Rehabilitative Services.
While no Florida cases have addressed this precise issue, we held in State v. Wills, 359 So.2d 566 (Fla.2d DCA 1978), that noncompliance with statutory and regulatory requirements renders the results of chemical analyses of blood or breath inadmissible. Other jurisdictions have held that strict compliance with statutory requirements restricting the class of persons authorized to withdraw blood samples is a condition precedent to the admissibility of the test. Thus, before the results of a blood analysis may be introduced in evidence, the state must affirmatively show that the blood sample was taken by a person meeting the statutory requirements. Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala.Civ.App.), Cert. den., Ex parte Redwing Carriers, Inc., 344 So.2d 522 (Ala.1977); Simolin v. Wilson, 253 Ark. 545, 487 S.W.2d 603 (1972); Lessenhop v. Norton, 261 Iowa 44, 153 N.W.2d 107 (1967); State v. Bruins, 315 So.2d 293 (La.1975).
The state here failed to establish that Grimes was a member of any of the classes of persons authorized by Section 322.261(2)(b) to withdraw blood samples. Rather, the evidence affirmatively indicates that Grimes was Not such an authorized individual. Therefore, notwithstanding the lack of any impropriety in the analysis of the blood sample taken from appellant, we reverse on this point and remand for a new trial. State v. Wills, supra; Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).
At appellant's sentencing hearing, the sentencing judge, who had not presided at the trial, imposed a sentence of ten years in prison. He explained his reasons for the severe sentence at length, pointing out that appellant had had two convictions for driving while intoxicated several years before (in 1970 and 1971), but apparently had not learned his lesson. The judge then went on to make the following comments I must candidly tell you this, that for what it is worth and I think you're entitled to know this, the Court's disposition of this matter would have been even more lenient if, in fact, you had acknowledged your responsibility and had entered a guilty plea to the charges as opposed to requiring a jury to determine your guilt, because I can only infer that once the incident happened for whatever reason you continued to be unable to accept responsibility for it. If you had accepted responsibility for it, I think everyone concerned would be considerably more sympathetic, but...
To continue reading
Request your trial
-
Del Percio v. City of Daytona Beach
...of plea or insistence on right to trial should play no part in the determination of her sentence by the trial judge. Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979). For this reason, I would vacate the sentence imposed on Moore and remand her case to the lower court for resentencing. See......
-
Frazier v. State
...could not impose a more severe sentence because of the costs and difficulty involved in proving the State's case); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979) (defendant's choice of plea should not have played any part in the determination of his sentence); Hector v. State, 370 So.2d......
-
Wilson v. State
...88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)." City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985) (quoting Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979)). Therefore, although a guilty plea may justify leniency, see Smith, 490 U.S. at 802, 109 S.Ct. 2201, an "accused may no......
-
City of Daytona Beach v. Del Percio
...trial is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)." Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979), quashed on other grounds, 390 So.2d 62 (Fla.1980). Disparate sentences between those of equal culpability, for instance......