State v. Kliphouse, 4D99-1608.

• Decision Date: 27 September 2000
• Docket Number: No. 4D99-1608.,4D99-1608.
• Parties: STATE of Florida, Appellant, v. Douglas KLIPHOUSE, Appellee.
• Court: Florida District Court of Appeals

771 So.2d 16

STATE of Florida, Appellant, v. Douglas KLIPHOUSE, Appellee.

No. 4D99-1608.

District Court of Appeal of Florida, Fourth District.

September 27, 2000.

Robert A. Butterworth, Attorney General, Tallahassee, and Robert R. Wheeler, Assistant Attorney General, West Palm Beach, for appellant.

Dan W. Moses, Boca Raton, for appellee.

TAYLOR, J.

The state appeals from an order suppressing the results of a blood alcohol test conducted on a blood sample taken from an unconscious motorist by medical personnel at the request of the police. We affirm. Appellee was driving a motorcycle when he was struck by a car and rendered unconscious. A police officer stated that when he arrived at the scene he smelled the odor of alcohol on appellee's breath. After appellee was transported to the hospital, the officer requested medical personnel to withdraw a blood sample to determine appellee's blood alcohol level. Appellee was still unconscious at the time. The results of the blood draw showed a blood alcohol content of .09 percent. Appellee was later charged by information with driving under the influence, in violation of Florida Statutes section 316.193(1) (1997).

Before trial, appellee filed a motion to suppress the blood alcohol results. He contended that the police lacked reasonable cause to have blood involuntarily withdrawn from him. At the hearing on the motion, the parties stipulated that appellee's driving was not a contributing cause of the accident and that the only indicia of appellee's impairment was the odor of alcohol on his breath. The trial court granted the motion to suppress the test results, determining that the mere odor of alcohol was insufficient for reasonable cause to believe that appellee was under the influence of alcohol. The state appealed the suppression order and the county court certified two questions of great public importance, which we rephrase as follows:

WHETHER FLORIDA STATUTE SECTION 316.1932(1)(c), WHICH AUTHORIZES A POLICE OFFICER TO ORDER BLOOD TESTING OF A PERSON WHO APPEARS FOR TREATMENT AT A HOSPITAL OR OTHER MEDICAL FACILITY AND IS UNCONSCIOUS AND INCAPABLE OF REFUSING SUCH TESTING, REQUIRES THAT THE OFFICER HAVE REASONABLE CAUSE TO BELIEVE THAT THE PERSON WAS DRIVING OR IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES (OR CHEMICAL OR CONTROLLED SUBSTANCES) TO THE EXTENT THAT HIS OR HER NORMAL FACULTIES WERE IMPAIRED.

DOES THE MERE ODOR OF ALCOHOL ON THE BREATH OF AN UNCONSCIOUS DRIVER, WHO WAS INVOLVED IN AN ACCIDENT NOT IN ANY WAY ATTRIBUTABLE TO SAID DRIVER, WITHOUT OTHER INDICIA OF IMPAIRMENT, GIVE AN OFFICER REASONABLE CAUSE TO BELIEVE THAT THE DRIVER WAS UNDER THE INFLUENCE OF ALCOHOL, WITHIN THE MEANING OF FLORIDA STATUTE SECTION 316.1932(1)(c)?

The legislature has narrowly defined the circumstances in which a blood draw may be performed in place of a breath or urine test without the driver's express consent. One circumstance allowing for forcible extraction of a blood sample is set forth in Florida Statutes section 316.1933(1) (1997). This section authorizes a blood test where an officer has probable cause to believe a driver under the influence of alcoholic beverages has caused death or serious injury to a human being, including himself. The situation presented in this case does not fall within section 316.1933(1), because, as the parties stipulated, the police officer did not reasonably believe that appellee caused the injuries resulting from the accident.

The other circumstance in which a police officer may obtain an involuntary blood sample is described in section 316.1932(1)(c). The requirements for this section are: (1) reasonable cause to believe the person was driving under the influence of alcoholic beverages or chemical or controlled substances;¹ (2) the person appears for treatment at a hospital, clinic or medical facility, and (3) the administration of a breath or urine test is impractical or impossible or the person is incapable of refusal due to unconsciousness or other mental or physical condition.

The trial judge correctly determined that section 316.1932(1)(c) applies to the facts in this case. He suppressed the blood test results, however, because he determined that the requirement for "reasonable cause to believe that the defendant was under the influence of alcoholic beverages" was not met. In so ruling, the trial court followed the Fifth District Court of Appeal's definition of "under the influence" in State v. Brown, 725 So.2d 441 (Fla. 5th DCA 1999). In Brown, the district court stated that the phrase "under the influence of alcoholic beverages" is synonymous with being "impaired" by alcohol, and that being impaired meant something more than simply having consumed alcohol. Although the trial judge disagreed with this interpretation of "under the influence," he followed it and ruled that the blood sample was illegally obtained from appellee since the mere odor of alcohol on appellee's breath did not provide the officer with reasonable cause to believe that he was under the influence of alcohol. It simply showed that he had consumed alcohol to an unknown extent.

In Brown,the defendant's blood was tested under section 316.1933(1), because the officer believed that the defendant caused fatal injuries to a bicyclist while the defendant was driving under the influence of alcohol. Similar to section 316.1932(1)(c), this section requires the officer to have probable cause to believe that the driver was "under the influence of alcoholic beverages." The fifth district noted that:

The statute does not define what is meant by `under the influence of alcoholic beverages,' nor does it go on and say, as does section 316.193 to the extent that the person's `normal faculties are impaired.' We agree with the trial judge in this case that `under the influence' means something more than just having consumed an alcoholic beverage.

Id. at 443.

The court in Brown went on to discuss the meaning of "under the influence" as defined in Black's Law Dictionary:

`Under the influence' ... as used by statutes or ordinances, ... covers not only all well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive one of that clearness of intellect and control of himself which he would otherwise possess. Any condition where intoxicating liquor has so far affected the nervous system, brain or muscles of the driver so as to impair, to an appreciable degree, his ability to operate his automobile in the manner that an ordinary, prudent and cautious man, in full possession of his faculties, using reasonable care, would operate or drive under like conditions.

725 So.2d at 443, quoting Black's Law Dictionary 1369 (5th ed.1979) (emphasis supplied).

Although the district court reversed the trial court's suppression of the blood alcohol test results in Brown, it did so because of factors present in that case, other than the mere odor of alcohol, that indicated impairment—i.e., the defendant's blood shot eyes, erratic driving pattern, and behavior after the accident.

We first address the question whether the term "under the influence of alcohol" means "impaired" by alcohol under Florida Statute section 316.1932(1)(c). In deciding this issue, we apply the cardinal rule of statutory analysis that we must construe a statute to effectuate the intent of the legislature. See Parker v. State, 406 So.2d 1089, 1092 (Fla.1981); Armstrong v. City of Edgewater, 157 So.2d 422, 425 (Fla.1963). To determine legislative intent, we must view the entire statute and give full effect to all statutory provisions, construing related provisions in harmony with one another. See Young v. Progressive Southeastern Ins. Co., 753 So.2d 80 (Fla.2000)

; Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452 (Fla.1992); State v. Rodriquez, 365 So.2d 157, 159 (Fla.1978).

Section 316.193, Florida Statutes, prohibits a person from driving or being in physical control of a vehicle while under the influence of alcoholic beverages or chemical or controlled substances (DUI). A person is deemed to be under the influence of alcoholic beverages when (1) affected to the extent that the person's normal faculties are impaired or (2) when the person has a blood-alcohol level of 0.08 percent or higher.² The Implied Consent Laws (sections 316.1932 through 316.1934) provide procedures for gathering and testing physical evidence for DUI investigations and prosecutions. They require Florida drivers to submit to breath or blood testing to determine the alcohol concentration in their blood at the time of driving.

Although the compulsory administration of a blood test plainly constitutes a "search" of a person, it is well-established that forcible blood extraction from a defendant does not violate the Fourth Amendment prohibition against unreasonable searches and seizures when the defendant is under arrest for DUI provided (1) there is probable cause to arrest the defendant for DUI and (2) the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Mitchell, 245 So.2d 618 (Fla.1971), receded from on other grounds by, Brackin v. Boles, 452 So.2d 540 (Fla.1984)

; State v. Slaney, 653 So.2d 422 (Fla. 3d DCA 1995).

In approving the police procedures utilized to obtain blood samples in Schmerber, the Supreme Court stressed the fact that the petitioner was under a lawful arrest and that the facts in that case clearly established probable cause for the officers to arrest the petitioner for driving an automobile while under the influence of alcohol. The Court stated:

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere

...