Leveritt v. State

• Decision Date: 07 May 2002
• Docket Number: No. 1D98-4519.,1D98-4519.
• Citation: 817 So.2d 891
• Court: Florida District Court of Appeals
• Parties: Robert Charles LEVERITT, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

817 So.2d 891

Robert Charles LEVERITT, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 1D98-4519.

District Court of Appeal of Florida, First District.

May 7, 2002.

Rehearing Denied June 13, 2002.

William J. Sheppard and D. Gray Thomas of Sheppard, White and Thomas, P.A., Jacksonville, for Appellant/Cross-Appellee.

Robert A. Butterworth, Attorney General, Bart Schneider and Carolyn J. Mosley, Assistant Attorneys General, Tallahassee, for Appellee/Cross-Appellant.

PER CURIAM.

Robert Charles Leveritt appeals his convictions for driving under the influence (DUI) manslaughter and vehicular homicide; and the state cross-appeals the trial court's downward departure on appellant's sentence. For the reasons that follow, we affirm all but one of the issues raised on appeal, and affirm the issue raised on cross-appeal. We also certify conflict with decisions of other districts as to one of the issues raised and certify a question of great public importance.

Factual and Procedural Background

Following a day of playing golf with a friend, appellant lost control of his car on a rainy afternoon and was involved in a serious one-car accident. Appellant's passenger, his golfing friend and fellow U.S. Navy diver, was killed instantly. Appellant's blood was drawn at the hospital shortly after the accident, and an analyst for the Florida Department of Law Enforcement later tested the blood sample and found appellant's blood alcohol level to be .21. Appellant was charged with vehicular homicide and DUI manslaughter. Appellant moved to suppress results of the blood test. After an evidentiary hearing, the motion was denied.

At the ensuing trial, in addition to the blood test evidence, the prosecution adduced testimony from witnesses who saw appellant and the deceased passenger consuming Bloody Marys and beer on the day of the accident and other witnesses who smelled an odor of alcohol about the appellant's automobile after the accident. The evidence showed that there was, however, a period of several hours immediately prior to the accident during which appellant was not seen to have been drinking, and witnesses on the scene of the accident testified that they had not seen or found evidence of alcohol impairment in the accident. Without objection, the trial court instructed the jury to make certain presumptions of impairment pursuant to section 316.1934, Florida Statutes (1997), based on the blood alcohol test results, including the following:

If you find from the evidence that the defendant had a blood alcohol level of.08 percent [sic] or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.

The jury found appellant guilty on both counts. The trial court entered judgment adjudicating appellant guilty on both counts. This appeal ensued.

Blood Test Validity

Appellant raises several issues on appeal, most of which challenge the validity of the blood test, the central issue at trial, and the jury instruction made pursuant to section 316.1934. We find no merit to the arguments raised regarding the trial court's admission of blood samples taken from the appellant, as well as the test results based upon those samples. Further, we find no error in the trial court's decision to allow the medical examiner to testify as to the victim's blood alcohol level.

Among other things, appellant argues on appeal that he produced sufficient evidence of probable tampering with the blood samples to warrant suppression of the blood tests from trial. See, for example, Terry v. State, 668 So.2d 954, 959 n. 4 (Fla.1996)

. However, examining the evidence as a whole as to the drawing of appellant's blood, its storage, and its testing, we find competent, substantial evidence to support the trial court's denial of appellant's motion to suppress. See Butler v. State, 706 So.2d 100, 101 (Fla. 1st DCA 1998).

We do agree with appellant that law enforcement officials erred when they examined appellant's medical records, upon receiving them from Navy investigators, without first obtaining a subpoena pursuant to section 395.3025(4), Florida Statutes (1997). We find that this error did not preclude admission of the records at trial, however, because the state later complied with the statutory procedures. See State v. Johnson, 814 So.2d 390 (Fla.2002)

.

Statutory Presumption of Impairment

Appellant argues that the trial court reversibly erred in instructing the jury to make the statutory presumptions of impairment, see section 316.1934, Florida Statutes (1997), because rule 11D-8.012, Florida Administrative Code, the administrative rule implementing the implied consent statutes, was declared invalid under State v. Miles, 732 So.2d 350 (Fla. 1st DCA 1999), approved in part, quashed in part, 775 So.2d 950 (Fla.2000), following the trial in the instant case. See also Mehl v. State, 632 So.2d 593, 595 (Fla.1993)

. As a result, contends appellant, the state may not rely on the statutory presumptions in proving the elements of DUI manslaughter. In response, the state argues that this issue is procedurally barred because the appellant failed to preserve the issue with an objection to the jury instruction. Further, on the merits, the state contends that even if rule 11D-8.012 is invalid, the blood test evidence was admissible below under the common law reliability test, citing Robertson v. State, 604 So.2d 783 (Fla. 1992), and, as a result, the statutory presumptions still apply.

We agree with appellant that, because rule 11D-8.012 is invalid under Miles, the trial court used an erroneous jury instruction regarding the statutory presumptions of impairment. See Miles, 775 So.2d at 957. Our analysis starts with State v. Bender, 382 So.2d 697 (Fla.1980). In Bender, the supreme court upheld the constitutionality of the statutory provisions which provided for the implementation of testing methods for blood or breath analysis to ensure the production of reliable, scientific evidence and to ensure the health of the person being tested. Id. at 700-01. The court explained that under the common law

scientific tests of intoxication were admissible in evidence without any statutory authority if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.

Id. at 699. Thus, the court concluded that "the implied consent provision of chapter 322¹ and the approved testing methods and presumptions contained therein are all interrelated," id. at 699 (emphasis added), and, accordingly, that "[n]one of the statutory presumptions can apply in the absence of compliance with the administrative rules." Id. at 700.

Subsequently, in Robertson, the supreme court held that blood tests are admissible in a criminal proceeding even when the administrative rules governing the tests have not been met, so long as the three-prong common law predicate for admission of such evidence has been satisfied. The supreme court specifically advised in Robertson, however, that without complying with the administrative rules, "the state is not entitled to rely on any of the presumptions created by the implied consent law. ..." Robertson, 604 So.2d. at 791.

In Miles, this court affirmed a trial court's ruling that rule 11D 8.012 did not ensure that reliable scientific evidence would be obtained using the storage procedures outlined in the rule and that, as a result, the state was not entitled to a presumption of impairment under section 316.1934. Miles, 732 So.2d at 353; see also Mehl, 632 So.2d at 595

. On the authority of Robertson, this court explained in Miles that, notwithstanding the invalidity of the administrative rule, the result of an alcohol test could be admitted if the state satisfied the three-pronged common law test described in Bender for admission of scientific test results for intoxication. See Miles, 732 So.2d at 353. In Miles, we certified a question as to whether the state was entitled to use the statutory presumption of impairment when using the three-pronged common law test. Id.

On review of Miles, the supreme court held that this court did not err "in approving the finding of the trial court that rule 11D-8.012 does not comply with Bender and therefore may not give rise to the statutory presumptions associated with the implied consent law." 775 So.2d at 953-4 (emphasis added). The supreme court added that when the three-pronged common law test described in Bender is used, "the statutory presumptions would not be applicable" and "it would have been error for the trial court to have instructed the jury on any of the presumptions of the implied consent law once the State had to revert to the common law approach." Id. at 957. The supreme court concluded its decision in Miles by observing that "the common law approach (the three-prong predicate) and the presumptions are mutually exclusive to the extent that the presumptions are specifically contingent upon compliance with the mandate for quality assurance of the implied consent law." Id. (emphasis added).

It is clear from Miles (i) that rule 11D-8.012 is invalid and (ii) that the statutory presumptions of impairment cannot be used when admissibility of the blood test is based upon the common law Bender test. Below, no determination was made as to whether the three-prong common law predicate had been satisfied and the record does not reflect direct testimony as to the reliability of the blood test used, prong one of the common law predicate. Even though Miles was decided while the instant case was pending on appeal, because under Miles the state was required to establish the validity of the intoxication tests under the three-prong common law predicate, we hold that the...