McGraw v. State

• Decision Date: 21 March 2018
• Docket Number: No. 4D17–232,4D17–232
• Citation: 245 So.3d 760
• Parties: Byron MCGRAW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

245 So.3d 760

Byron MCGRAW, Appellant,

v.STATE of Florida, Appellee.

No. 4D17–232

District Court of Appeal of Florida, Fourth District.

March 21, 2018

Question Certified by May 16, 2018

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

Kuntz, J.

The Defendant appeals an order denying his motion to suppress the results of a warrantless blood draw in a DUI case. The county court found the blood draw was an unconstitutional search under the Fourth Amendment, but denied the motion to suppress based on the "good faith" exception to the warrant requirement. The county court also certified the following question to be of great public importance:

Does the following sentence in § 316.1932(1)(c), Florida Statutes,

Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such [blood] test.

remain constitutionally valid under the Fourth Amendment to the United States Constitution and Article 1, Section 12 of the Florida Constitution in light of Missouri v. McNeely, [569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696] (2013), State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), and Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) ?

We exercised our discretionary jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(4)(A) to answer the certified question.

We address the case before us, and the certified question, in multiple parts. First, we discuss the facts relevant to this appeal. Second, we discuss the Defendant's motion to suppress and the court's ruling. Third, we discuss Florida's implied consent law. Fourth, we analyze the Supreme Court's decisions in Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and decisions from courts around the country that have traveled this same path. Fifth, we apply the Supreme Court's decisions in McNeely and Birchfield to the case before us.

In applying the Supreme Court's decisions, we rephrase the certified question:

Under the Fourth Amendment, may a warrantless blood draw of an unconscious person, incapable of giving actual consent, be pursuant to section 316.1932(1)(c), Florida Statutes (2016) ("Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to [a blood draw and testing]."), so that an unconscious defendant can be said to have "consented" to the blood draw?

We answer the rephrased certified question in the affirmative, and affirm the county court's denial of the Defendant's motion to suppress.

Background

i. The Accident and Investigation

The Defendant was involved in a single car rollover accident, causing damage to his vehicle and injury to himself. An officer assigned to the special operations division of the Riviera Beach Police Department arrived at the scene around 8:00 a.m. When he arrived, officers had established a crash site, and Riviera Beach Fire Rescue was "cutting away at portions of the vehicle" trying to extricate the Defendant.

The officer testified that the Defendant was unconscious and unresponsive to Fire Rescue. While standing "two to three feet behind the Fire Rescue personnel" he could detect the odor of alcohol from the Defendant, his clothing, and the vehicle.

Fire Rescue removed the Defendant from the vehicle and transported him to the emergency room. The officer followed the ambulance to the hospital, a trip that took around five minutes. At the hospital, the officer again made contact with the Defendant, who remained unconscious. The officer testified that after the medical professionals completed treating the Defendant, they brought the Defendant into a room and placed in "some sort of device that was actually just keeping his head still and straight at that time." The officer observed bruises and scratches, but observed no traumatic injuries to his body.

The officer testified that, at this point, he was investigating a possible driving under the influence case and "wanted to request ... a sample of his blood." The officer "attempted to rub [the defendant's] sternum to see if there would be any kind of reaction from pain compliance. And the registered nurse who was assisting [the officer] also conducted a sternum rub, to which we had no effects at all." At that time, the officer requested that the registered nurse assigned to the Defendant draw his blood. After they drew his blood, and about thirty to sixty minutes after arriving at the hospital, the officer left the hospital and had no further contact with the Defendant or the hospital about the Defendant.

ii. The Defendant's Motion to Suppress

The State later charged the Defendant by amended information with two counts of driving under the influence causing or contributing to injury to persons or property (enhanced). Arguing "the U.S. Supreme Court [recently] held that warrantless blood draws are not permissible incident to arrest, and are not per se permissible under the exigent circumstances exception," the Defendant moved to suppress the blood draw.

The court held a hearing on the Defendant's motion to suppress, hearing testimony from the officer, and subsequently rendered an order denying the motion to suppress and certifying a question of great public importance. The court held Florida's implied consent law does not provide consent for a warrantless blood draw. The court then found the officer's testimony supported no other exception to the warrant requirement. Finally, the court found that the officer proceeded in an objectively reasonable reliance on the validity of the implied consent law. As a result of the officer's good faith reliance on a presumptively valid statute, the court denied the motion to suppress. The Defendant was convicted, and appeals the court's ruling.

Analysis

12"We review motions to suppress under a mixed standard, deferring to the trial court's factual findings but reviewing legal conclusions de novo." Strachan v. State, 199 So.3d 1022, 1024 (Fla. 4th DCA 2016). And, the constitutionality of a statute presents a pure question of law subject to de novoreview. Braddy v. State, 219 So.3d 803, 819 (Fla. 2017).

i. Florida's Implied Consent Law

3 The Fourth Amendment to the United States Constitution protects "persons, houses, papers and effects against unreasonable searches." Amend. IV, U.S. Const. In Florida, we construe this right "in conformity with [and] as interpreted by the United States Supreme Court."Art. I, § 12, Fla. Const. In other words, "the search and seizure provision of the Florida Constitution imposes no higher standard than that of the Fourth Amendment to the United States Constitution." State v. Hetland, 366 So.2d 831, 836 (Fla. 2d DCA 1979).

45 The Defendant argues that the blood draw violated his Fourth Amendment rights. First, we begin with the premise that the "compulsory administration of a blood test ... plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In other words, a blood draw is a "search" under the Fourth Amendment. Therefore, the Defendant is initially correct that, to compel a blood draw, the State must either: (a) obtain a warrant; or (b) establish a valid exception to the warrant requirement. It is undisputed that the State did not obtain a warrant. Rather, the State relies on an exception to the warrant requirement—namely, the Defendant's consent based on Florida's implied consent law.

"All 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood alcohol content] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." McNeely, 569 U.S. at 161, 133 S.Ct. 1552.

6 Generally, our implied consent law is codified in chapter 316, Florida Statutes. See§§ 316.1932, .1933, .1934, Fla. Stat. (2015). These statutes "essentially require all persons accepting a license to drive in Florida to consent to a blood-alcohol test upon being arrested for driving under the influence." Montes–Valeton v. State, 216 So.3d 475, 481 n.1 (Fla. 2017) (quotation omitted).

Specifically at issue here is section 316.1932(1)(c) :

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood .... Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to [a blood draw and testing].

The Defendant argues this statute is insufficient, by itself, to satisfy the Fourth Amendment. Further, he argues it is unconstitutional "to the degree it provides involuntary implied consent to perform a blood draw any time a person suspected of driving under the influence is unconscious at a hospital—this is because implied consent is not the same as consent for Fourth Amendment purposes."

In addition to recent United States Supreme Court decisions, the Defendant cites two Florida decisions in support of his position. SeeLiles, 191 So.3d at 486 ; Williams v. State, 167 So.3d 483, 488 (Fla. 5th DCA 2015), vacated, No. SC15-1417, 2016 WL 6637817 (Fla. Nov. 9, 2016).¹ While we can certainly look to the decisions of our sister court, we first consider decisions from the United States Supreme Court, as, again, Florida provides no Fourth Amendment protection beyond that determined by the Supreme Court.

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