State v. Demoya
| Decision Date | 26 February 1980 |
| Docket Number | No. 79-871,79-871 |
| Citation | 380 So.2d 505 |
| Parties | The STATE of Florida, Appellant, v. Jorge DEMOYA, Appellee. |
| Court | Florida District Court of Appeals |
Janet Reno, State's Atty. and Milton Robbins, Asst. State's Atty., for appellant.
Arturo Alvarez, Miami, for appellee.
Before HENDRY, BARKDULL and SCHWARTZ, JJ.
Following an automobile accident, the appellant was requested to take a blood alcohol test by an investigating officer, pursuant to Section 322.261, Florida Statutes (1977). 1 In this connection, the appellee consented to permit his blood to be analyzed to determine alcoholic content. Notwithstanding the limited consent to test for alcohol, the State tested and determined that there was evidence of the drug methaqualone contained within the blood of the appellee. He was thereupon charged in a four-count information with manslaughter and the information specifically referred to the drug methaqualone. He subsequently moved to suppress the results of the test which described the drug methaqualone. This motion was granted, and the State appeals. We affirm.
Florida having adopted an implied consent law through its Legislature, that law is to be strictly construed. The appellee only consented to have his blood tested for alcohol. When the State, through its agents, ran additional tests it went beyond the limited consent obtained pursuant to the statute and, therefore, the trial judge was correct in her order on the motion to suppress. See: People v. Keen, 396 Mich. 573, 242 N.W.2d 405 (1976); People v. Weaver, 74 Mich.App. 53, 253 N.W.2d 359 (1977); 1979 Op.Atty.Gen.Fla. 079-4 (Jan. 19, 1979).
We are not here faced with the Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) situation, because the law enforcement officers did not proceed on the theory sustained in the cited case (even if such was viable in this State, which we do not here decide) 2; they proceeded solely on the statute, Section 322.261, supra. They received limited permission and anything obtained beyond the permissible test was properly the subject of a motion to suppress.
The order under review be and the same is hereby affirmed.
Affirmed.
The appellee concedes that, on the basis of the facts known or obvious to the investigating officers, they had probable cause to believe that he had been driving while under the influence of a drug other than alcohol. Under Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and its progeny, they were therefore constitutionally entitled to secure his blood in order to test it for drugs, without a warrant and without his consent. Since this is true, I believe that the source of the blood actually used for that purpose, and the circumstances under which it was taken, are legally irrelevant. For this reason, I would reverse the order under review.
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State v. Counts, 83-71
...DCA 1984); Campbell v. State, 423 So.2d 488 (Fla.1st DCA 1982); Grala v. State, 414 So.2d 621 (Fla.3rd DCA 1982); State v. Demoya, 380 So.2d 505 (Fla.3rd DCA 1980). However, we think section 322.261(2)(b) was not violated in this case because the term "physician" encompasses the term "resid......
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