State v. Quartararo

• Decision Date: 27 January 1988
• Docket Number: No. 86-2113,86-2113
• Citation: State v. Quartararo, 522 So.2d 42, 13 Fla. L. Weekly 300 (Fla. App. 1988)
• Parties: 13 Fla. L. Weekly 300 STATE of Florida, Appellant, v. Nicholas QUARTARARO, Appellee.
• Court: Florida District Court of Appeals

Page 42

522 So.2d 42

13 Fla. L. Weekly 300

STATE of Florida, Appellant, v. Nicholas QUARTARARO, Appellee.

No. 86-2113.

District Court of Appeal of Florida Second District.

Jan. 27, 1988.

Rehearing and Rehearing En Banc Denied March 22, 1988.

Robert A. Butterworth, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellant.

Marc H. Salton, New Port Richey, for appellee.

DANAHY, Chief Judge.

The question we must decide is whether otherwise reliable blood alcohol test results are admissible evidence in a prosecution for DUI manslaughter where the blood sample was withdrawn by a person not authorized to do so by section 316.1933, Florida Statutes (Supp.1986). That statute authorizes the withdrawal of blood under certain circumstances by a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment. In this case, blood was withdrawn by a certified paramedic present at the scene of the accident, but who was not there for the purpose of rendering medical service or treatment and did not, in fact, render any medical service or treatment. Because of that, the trial judge ruled that the blood alcohol test results from the sample withdrawn by the paramedic were not admissible into evidence and granted the appellee's motion to suppress the test results as evidence in this case. The state appeals; we reverse.

The appellee was charged with two counts of DUI manslaughter in connection with the deaths of two persons in a vehicle-pedestrian accident. Florida Highway Patrol Trooper Nelson Allemany investigated the incident. Upon arrival, Trooper Allemany located the appellee and identified him as the driver of the vehicle. Trooper Allemany detected alcohol on the appellee's breath and advised the appellee that he was beginning a criminal investigation because he suspected the appellee of driving under the influence of alcohol. The appellee took several field sobriety tests involving coordination and failed all but one of those tests. Paramedic William Arnold, who had been called to the scene, took a blood sample from the appellee apparently at Trooper Allemany's request. The parties are at odds over the question whether the appellee gave his express consent to the withdrawal of a sample of his blood. Under our analysis, the question of the appellee's consent, express or implied, is irrelevant.

We first consider the constitutional implications of this scenario. The withdrawal of blood to determine alcohol content constitutes a "search" within the meaning of the Fourth Amendment to the United States Constitution. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Florida Constitution, in section 12 of article I, also provides protection to persons against unreasonable searches and seizures. In 1982, the people of the State of Florida adopted an amendment to section 12 providing that the right described therein shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Section 12 now specifically provides that articles or information obtained in violation of section 12, article I, shall not be admissible into evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the Fourth Amendment to the United States Constitution. The Supreme Court of the United States has held that there is no violation of Fourth Amendment protections when an officer has probable cause to believe that an individual has driven an automobile under the influence of intoxicating liquor and directs that a blood sample be withdrawn from that individual for purposes of a blood alcohol test, even over the objections of that individual. Therefore, since the blood sample is constitutionally obtained, the test results are admissible into evidence. Schmerber.

The Florida legislature covered some of the same ground as Schmerber in the enactment of section 316.1933. Subsection (1) of that section provides that notwithstanding any recognized ability to refuse to submit to the tests provided in section 316.1932 (the implied consent law) or any recognized power to revoke the implied consent to such tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the...