Robertson v. State
| Decision Date | 16 July 1992 |
| Docket Number | No. 77021,77021 |
| Citation | 604 So.2d 783 |
| Parties | Willard Carl ROBERTSON, Petitioner, v. STATE of Florida, Respondent. 604 So.2d 783, 17 Fla. L. Week. S454 |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender, Michael S. Becker, James R. Wulchak and Barbara L. Condon, Asst. Public Defenders, Seventh Judicial Circuit; and Flem K. Whited, III of Lambert & Whited, Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for respondent.
We have for review Robertson v. State, 569 So.2d 861 (Fla. 5th DCA 1990), which certified the following questions of great public importance:
(A) May a chemical analysis performed in accordance with the approved methods contemplated by section 316.1933 be conducted under the supervision of a permittee by individuals not possessing [a Florida Department of Health and Rehabilitative Services ("HRS") ] permit?
(B) Can the state introduce into evidence test results of blood samples taken at the request of law enforcement if the requirements of section 316.1933 are not satisfied? If so, upon proof of qualification of the person taking blood or conducting the test, can the state nonetheless rely on the provisions of section [ ] 316.1933 to prove a violation of section 316.193 or must the state introduce competent proof wholly independent of the statute?
Robertson v. State, 569 So.2d 861, 863-64 (Fla. 5th DCA 1990). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We answer the first question in the negative; and we answer the second question with a qualified affirmative.
On July 2, 1988, four vehicles were involved in a collision, resulting in the death of Karen Deatherage. The accident was caused when a white truck attempted to pass another vehicle despite oncoming traffic. The truck was registered in the name of Willard Carl Robertson, the defendant below. One witness said that, immediately after the accident, he saw three men running around the truck, picking up beer cans and putting them into an ice chest.
Later, Robertson was located lying facedown in the grass some fifty to 100 feet from the scene. The other two men were not present. Robertson appeared to be unconscious, but later became belligerent. He had abrasions to the left shin, resulting in blood loss. Witnesses could find no apparent injuries to Robertson's head. At the time, Robertson was wearing short pants and had blue paint stains on his arm. (He was a painter.) According to the defense, Robertson also had red paint stains on his clothing.
After a two-hour search, police found the other two men. Both had head and knee injuries. At the time of the accident, both men were wearing long pants and had red paint stains on their clothing.
An examination of the truck revealed that the windshield had sustained two impacts from the inside. One was located in the center, to the immediate right of the driver's area, and the other was located at the far right.
The steering wheel was buckled up, and there was a dent nearby on the dashboard that appeared to be bloody. A trooper said he saw blood and human tissue on the emergency brake pedal. A blue paint stain was found on the steering wheel. A red paint stain was found on the dash on the passenger side. Two deep compressions in the dash in front of the passenger side showed clothing imprints. These dents appeared to correspond with the passengers' knees striking the dash.
While Robertson still was at the scene, Trooper Warren Peck approached him and asked about his involvement in the accident. Peck at this time was investigating a homicide. Upon questioning by Peck, Robertson stated that he had been walking down the side of the road and got hit. This statement later was introduced at trial.
Shortly after the accident, blood samples were taken from Robertson. These samples subsequently were tested at the direction of an investigating officer, based on her belief that Robertson was intoxicated. The test results varied from a low of .163 to a high of .20. The circumstances surrounding the drawing of the blood were described in the following terms by the officer:
Q. Were you present in the room during the time the blood was drawn?
A. Yes, sir, I was.
Q. Do you remember it clearly?
A. Yes, sir, I do.
Q. What makes you remember this so clearly?
A. After--because of a very combativeness [sic], it was very hard to draw blood at the time. Because when you've got somebody laying there and trying to restrain them down, the nurse was having a very hard time finding a vein. She was having to get an arm band. There is three of us trying to--we finally put restraints on him and got blood drawn and she took it and handed the tubes after she sealed them and I sealed them in the blood kit.
The nurse also confirmed that "[t]he officer had to hold [Robertson] down" to draw blood. It thus is clear both from this testimony and the overall record that Robertson did not actually consent to the withdrawal of blood, nor was blood withdrawn for some medical purpose. 1 Rather, blood was withdrawn at the direction of the officer pursuant to the implied-consent provision of section 316.1933(1), Florida Statutes (1987), 2 in an attempt to gather evidence to prosecute Robertson for a DUI-related offense. 3
At trial, the state had no direct evidence that Robertson was the driver of the truck. It relied entirely on the circumstantial evidence recited above.
During the middle of the trial, the state announced it needed to amend its witness list to include Dr. Wayne Duer. The state said it had just learned that Dr. Lynn Bowman (who was on the list) had not actually conducted the blood-alcohol test on Robertson's blood, but had merely supervised a test conducted by Dr. Duer. Defense counsel was permitted to depose the witnesses before the trial continued, and the trial court conducted a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), and determined that no discovery violation had occurred.
Robertson then objected to the admission of the results of the blood alcohol tests on the ground that the person who performed the test, Dr. Duer, was not certified by HRS as required by statute at the times in question. The state argued that the requirements of the statute were satisfied because Dr. Duer's work was supervised by a licensed analyst, Dr. Bowman.
At the trial, Dr. Duer testified that he held a bachelor's degree in mathematics, a masters degree in organic chemistry, and a doctorate in physical chemistry. He had formerly taught analytical chemistry at the University of Florida and had worked in racehorse blood analysis for the State Department of Business Regulation for ten years.
Dr. Duer had been employed by the Florida Department of Law Enforcement since December, 1986 and had begun analyzing substances for alcohol content in July, 1988. Robertson's blood was received by Dr. Duer on July 6, 1988 and was tested on August 5, 1988.
Dr. Bowman testified that the testing was conducted as part of Dr. Duer's training. Dr. Bowman would tell Dr. Duer what to do. Then, Dr. Duer would obtain the results of the tests, and Dr. Bowman would review them. Dr. Bowman signed the laboratory report. While Dr. Duer was conducting the test procedures, Dr. Bowman was in the same laboratory, observing Dr. Duer and speaking with him while the test was going on, although he was not in Dr. Duer's presence at all times.
The trial court found this procedure substantially complied with the statutory requirements but suggested to the state that, in the future, the FDLE should not do laboratory training in homicide cases. The district court affirmed on grounds the state had substantially complied with the DUI statutes, but it certified the two questions of great public importance.
As to the first certified question, we find that it must be answered in the negative. Under the plain terms of the statute, the person conducting the chemical analysis of blood must actually possess the HRS permit. The statute authorizing coercive testing in drunk-driving accidents involving death or serious injury uses the following language:
A chemical analysis of the person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with 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 may approve satisfactory techniques or methods, ascertain the qualifications and competence of individuals to conduct such analyses, and issue permits which will be subject to termination or revocation at the discretion of the department.
Sec. 316.1933(2)(b), Fla.Stat. (1987) (emphasis added). Once a blood-alcohol test is validly taken under subsection 316.1933(2), the Florida Statutes then create a presumption that anyone with a blood-alcohol content of 0.10 percent or more is impaired. Sec. 316.1934(2)(c), Fla.Stat. (1987). However, the presumption statute once again cautions:
A chemical analysis of a person's blood to determine alcoholic content or a chemical analysis of a person's breath, in order to be considered valid under the provisions of this section, must have been performed substantially in accordance with 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. Any insubstantial differences between approved techniques and actual testing procedures in any individual case shall not render the test or test results invalid.
Sec. 316.1934(3), Fla.Stat. (1987) (emphasis added).
We find this language plain and unambiguous. Under both statutes, the test "must have been performed ... by an individual possessing a valid permit." Id. While there are "substantial compliance" clauses and a separate "s...
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