State v. Riggins
| Decision Date | 22 July 1977 |
| Docket Number | No. 76-1367,76-1367 |
| Citation | 348 So.2d 1209 |
| Parties | STATE of Florida, Appellant, v. Michael Wayne RIGGINS, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellant.
Edward H. Fine of Campbell, Colbath, Kapner & Fine, West Palm Beach, for appellee.
Appellee was charged with two counts of vehicular homicide under Section 782.071, Florida Statutes (1975). The trial court granted appellee's motion to suppress a blood sample taken from appellee over his vehement protest, and the state seeks review of the order granting the motion. We affirm.
It appears that appellee was driving an automobile that became involved in an accident in which two persons were killed. Appellee was injured in the accident, and he was taken to a hospital. While in the emergency room or thereabouts, the police gave appellee his Miranda warnings, told him he was under arrest, and advised him they intended to take a blood sample from him. Although appellee was injured he was conscious and able to communicate. He smelled of alcohol and was uncooperative to the extent of physically resisting attempts to extract a blood sample from his person.
The police attempted to have a sample taken by force, and they sat upon appellee and twisted his broken arm in an effort to make him submit. Finally, the police allowed appellee to call his lawyer. The lawyer advised him not to allow the blood test to be performed, so appellee continued to refuse. The police then threatened to take him to jail, even though he was catheterized. At this point appellee's sister intervened and persuaded appellee to allow the blood sample to be taken over his protest.
The following factors lead us to hold that, under the laws of this State, law enforcement authorities may not over the protests of an individual require the taking of a blood sample from the protesting individual in order to conduct a chemical test to determine whether the individual's driving ability was impaired by the use of intoxicants.
I. Section 322.261(1)(a), Florida Statutes (1975), commonly referred to as the "implied consent law", provides that any person accepting the privilege of driving a motor vehicle in this state shall be deemed to have given his consent to submit to an approved chemical test of the alcohol content of his blood if he is lawfully arrested for any offense committed while driving a motor vehicle under the influence of alcoholic beverages. But subsection (d) provides that, if such person refuses an officer's request to submit to such test, the Department of Highway Safety and Motor Vehicles shall suspend the person's privilege to operate a motor vehicle for a period of three months. Thus, it appears that the implied consent evidenced by accepting the privilege of operating a motor vehicle in this state may be revoked at the time the chemical test is suggested by an officer. Otherwise, the section providing for suspension upon refusal to submit would be superfluous. And there are other parts of Section 322.261 which indicate that the implied consent can be revoked. For example, Section (1)(a) provides "Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 3 months." Sections (e) through (g) set up procedures for a hearing and review of the proposed suspension should the person involved wish to contest the suspension.
II. The author of the law review article, "Florida's 'Implied Consent' Statute: Chemical Tests for Intoxicated Drivers", 22 University of Miami Law Review 698, Robert H. McManus, points out that:
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State v. Slaney
...implied consent statutes and thus results of scientific test performed on such sample were inadmissible in evidence); State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977) (same), cert. dismissed, 362 So.2d 1056 (Fla.1978).3 The current version of this statute, Sec. 316.1933(1)(c), Fla.Stat.......
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State v. Hitchens, 63969
...Court, 106 Ariz. 542, 549, 479 P.2d 685, 692 (1971) (driver has "physical power" to refuse to submit to the test); State v. Riggins, 348 So.2d 1209, 1211 (Fla.App.1977); Longino v. Cofer, 148 Ga.App. 341, 343, 251 S.E.2d 113, 114 (1978); Rossell v. City & County of Honolulu, 59 Hawaii 173, ......
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Zeigler v. State
...is equally applicable to the results of a sodium butathol test. See Sullivan v. State, 303 So.2d 632 (Fla.1974); State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977); Crawford v. State, 321 So.2d 559 (Fla. 4th DCA 1975), approved in State v. Crawford, 339 So.2d 214 Also the trial judge prop......
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Woodward v. Duval Motor Co.
...barring the results of chemical tests as evidence unless the motorist first gives his consent to submit to the tests. State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977); Lytwyn v. State, 353 So.2d 222 (Fla. 1st DCA 1977); McDonald v. State, 364 So.2d 1241 (Fla. 2d DCA 1978); Smith v. Stat......