Michie v. State, 92-00583
| Decision Date | 02 March 1994 |
| Docket Number | No. 92-00583,92-00583 |
| Citation | 632 So.2d 1106 |
| Parties | 19 Fla. L. Weekly D510 Lee A. MICHIE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Megan Olson, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Stephen A. Baker, Asst. Atty. Gen., Tampa, for appellee.
Lee A. Michie appeals from judgments and sentences entered after a jury pronounced him guilty of two counts of simple DUI and two counts of driving with a suspended license. We affirm in part and reverse in part.
On July 28, 1990, at approximately 1:45 a.m., Michie was involved in an automobile accident in which he and two others were injured. Michie was rushed by helicopter to Tampa General Hospital. The flight nurse described Michie as belligerent and reeking of alcohol. In her opinion, Michie was intoxicated. Michie admitted to the registered nurse on duty at Tampa General Hospital upon arriving that he had been drinking prior to the accident. Blood was withdrawn from Michie that morning--once at 3:10 a.m. for medical purposes, and again at 6:00 a.m. at the behest of law enforcement. The medical sample revealed a .196 blood alcohol level; an analysis of the legal sample produced a blood alcohol level of .110. The state charged Michie with two counts of driving under the influence causing serious bodily injury, and two counts of driving with a suspended license causing serious bodily injury. The jury, rejecting the injury element of each count, convicted Michie of the lesser included offenses of simple DUI and driving with a suspended license. Upon those convictions the court entered four separate judgments and imposed concurrent terms of nine months' incarceration for the simple DUIs to be followed by concurrent one year terms of probation for driving with a suspended license.
Michie urges that the state was not entitled to rely upon the implied consent statute's presumption of impairment and also that his convictions and sentences violate the Fifth Amendment's guarantee against multiple punishments for "continuing offenses." In his first point, he correctly contends that the trial court erred in permitting the test results of the legally compelled blood draw revealing the .110 blood alcohol level. 1 It is evident from the record that the state introduced that result as presumptive evidence of impairment but failed to establish substantial compliance with the relevant regulations adopted by HRS pursuant to the mandate of section 316.1933(2)(b), Florida Statutes (1991). 2 In light of this deficiency, we agree that the presumption afforded in section 316.1934(2)(c), Florida Statutes (1991), should not have been available to the state.
Our review of the record has, however, revealed a basis for affirming the trial court. In addition to the inadmissible blood alcohol evidence, the state introduced the results of the medically compelled blood test. In State v. Quartararo, 522 So.2d 42 (Fla.2d DCA), rev. denied, 531 So.2d 1354 (Fla.1988), we interpreted State v. Strong, 504 So.2d 758 (Fla.1987), to permit test results without regard to the requirements of section 316.1933, provided that the blood sample is drawn for a medical purpose by a qualified healthcare professional, and provided further that the state establishes the traditional predicate for admissibility: the test's reliability, the examiner's qualifications, and the meaning of the test results. See Robertson v. State, 604 So.2d 783, 791 n. 13 (Fla.1992). Having reviewed the record of these proceedings, we conclude for the following reasons the trial court properly allowed the .196 blood-alcohol reading. First, in compliance with the implied consent law, a qualified healthcare provider...
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