State v. Slaney

• Court: Florida District Court of Appeals
• Writing for the Court: HUBBART
• Citation: State v. Slaney, 653 So.2d 422 (Fla. App. 1995)
• Decision Date: 22 March 1995
• Docket Number: No. 93-1176,93-1176
• Parties: 20 Fla. L. Weekly D717 The STATE of Florida, Appellant, v. Sean SLANEY, Appellee.

Page 422

653 So.2d 422

20 Fla. L. Weekly D717

The STATE of Florida, Appellant, v. Sean SLANEY, Appellee.

No. 93-1176.

District Court of Appeal of Florida Third District.

March 22, 1995.

Rehearing Denied May 10, 1995.

Robert A. Butterworth, Atty. Gen., and Mark Rosenblatt, Asst. Atty. Gen., for appellant.

Colodny, Fass & Talenfeld and Stuart B. Yanofsky, Fort Lauderdale, for appellee.

Before HUBBART and COPE and GODERICH, JJ.

HUBBART, Judge.

This is an appeal by the state from an order of the Dade County Court granting the defendant Sean Slaney's motion to suppress the results of a blood alcohol test conducted on a blood sample involuntarily taken from the defendant by medical personnel at the request of the police; this order was entered in a criminal traffic case in which the defendant was charged with driving a motor vehicle while under the influence of an alcoholic beverage [hereinafter DUI]. In the order under review, the Dade County Court certifies that this case raises a question of great public importance, which question we rephrase as follows:

"If [as here] a police officer [based on probable cause] arrests a [conscious] defendant for driving [a motor vehicle] under the influence [of an alcoholic beverage after a traffic accident in which no person has been killed or seriously injured and where the administration of a breath or urine test is not otherwise impractical or impossible], may [the officer] require the defendant to submit to [an involuntary] blood withdrawal performed by medically qualified personnel ...?"

We reject the defendant's arguments to the contrary and conclude that this court has jurisdiction to entertain this appeal as one taken from a non-final order of the county court certified to be of great public importance. Art. V, Sec. 4(b)(1), Fla. Const.; Fla.R.App.P. 9.030(b)(4), 9.160. Moreover, for the reasons which follow, we answer the certified question in the negative upon a holding that the withdrawal of such a blood sample (1) constitutes a violation of Florida's implied consent law under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and (2) cannot otherwise be justified on the basis of the defendant's voluntary consent; accordingly, we affirm the order under review suppressing as evidence the results of the subject blood test.

I

The facts of this case, as found by the trial court in the order under review and supplemented by other undisputed evidence, are as follows:

"The defendant [Sean W. Slaney] was involved in a one-car [traffic] accident [in the late evening hours of May 12, 1992 in Dade County, Florida, when he lost control of the car he was driving, left the public street and ran into a tree]. Police and [f]ire [r]escue responded to the scene. The defendant, who was [conscious and] bleeding from his forehead was treated by [f]ire [r]escue and the bleeding was stopped. [After placing the defendant under arrest for driving a motor vehicle while under the influence of an intoxicating beverage ¹,] [t]he first [police] officer on the scene requested that the [p]aramedic withdraw a blood sample from the defendant[;] however, the [p]aramedic was unable to do so because he lacked the proper equipment. The first officer believed the defendant was not seriously injured.

The second [police] officer that arrived on the scene testified that he read to the defendant the [i]mplied [c]onsent [l]aw [from a form;] however, the second officer testified that wherever the words breath or urine appeared [on the form] he substituted the word 'blood' [i.e., that the defendant would lose his driver's license if he refused to consent to a blood draw]. The second officer further testified that the defendant agreed to give blood only after [the officer] read to the defendant the modified [i]mplied [c]onsent [l]aw. The second officer took the defendant to the hospital where a qualified medical person at [the officer's] request withdrew a blood sample from the defendant."

The defendant was charged with driving a motor vehicle while under the influence of an alcoholic beverage [Sec. 316.193, Fla.Stat. (1991) ] before the Dade County Court; he entered a plea of not guilty and filed a pre-trial motion to suppress the results of the blood alcohol test performed on the blood sample taken from him. The motion came on for an evidentiary hearing at which the above-stated facts were adduced.

The defendant contended below that the police were only authorized to demand a blood sample from a motorist under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and that neither of these statutes were applicable to this case; accordingly, he argued that the blood sample was illegally obtained from the defendant and the results of the subsequent blood test performed on this sample should be suppressed at defendant's criminal traffic trial. The state did not deny that the above statutes were inapplicable in this case, but argued that the blood tests were nonetheless admissible in evidence under the authority of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and Robertson v. State, 604 So.2d 783 (Fla.1992) because (1) the defendant was lawfully arrested for DUI, (2) the blood was withdrawn from the defendant incident to this lawful arrest by medical personnel pursuant to medically approved procedures, and (3) the core policies of the implied consent statutes were observed in this case.

The trial court agreed with the defendant and suppressed the blood test results based on its conclusion that "blood may be withdrawn for a DUI prosecution only within the parameters of [Secs. ] 316.1932(1)(c) and 316.1933(1)" which, without dispute, were not complied with by the police in this case. The state appeals.

II

The law is well settled that it is not an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution, as made enforceable against the states under the Due Process clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), for police to obtain a warrantless involuntary blood sample from a defendant who is under arrest for DUI provided (1) there is probable cause to arrest the defendant for that offense, 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). It is equally well settled, however, that the states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967) (state constitutional provision on search and seizure); Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968) (state statute). In Florida, these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures, Art. I, Sec. 12, Fla. Const. (1982 amendments); Bernie v. State, 524 So.2d 988 (Fla.1988), but may be imposed by other provisions of Florida law, including a state statute. Compare Shaktman v. State, 553 So.2d 148 (Fla.1989) (pen registers regulated under Article I, section 23 of the Florida Constitution) with Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (pen registers; Fourth Amendment).

Indeed, it is the established law of this state that Florida's implied consent statutes [Secs. 316.1932, 316.1933, 316.1934, Fla.Stat. (1991) ] impose, in certain respects, higher standards on police conduct in obtaining breath, urine, and blood samples from a defendant in a DUI case than those required by the Fourth Amendment. The Florida Supreme Court in Sambrine v. State, 386 So.2d 546, 548 (Fla.1980), has so stated:

"What is at issue here ... is ... the right of the state of Florida to extend to its citizenry protections against unreasonable searches and seizures greater than those afforded by the federal constitution [through the Fourth Amendment]. This it has done through the enactment of section 322.261, Florida Statues (1975) [now sections 316.1932, 316.1933, Florida Statutes (1991) ]."

As further stated by the Fifth District Court of Appeal in State v. McInnis, 581 So.2d 1370, 1374 (Fla. 5th DCA), cause dismissed, 584 So.2d 998 (Fla.1991),

"One public policy reason for enacting such a statutory scheme [Florida's implied consent statutes] is the legislature's decision to extend to some motorists driving in Florida greater protection and rights of privacy than are provided by the state or federal constitutions."

In particular, Florida's implied consent statutes (1) limit the power of the police to require a person who is lawfully arrested for DUI to give samples of his/her breath, urine, or blood without the person's consent, and (2) prescribe the exact methods by which such samples may be taken and tested. These limitations and prescribed procedures represent higher standards for police conduct in obtaining samples of this nature from a DUI defendant than those required by the Fourth Amendment and are entirely permissible as a matter of state law. Cooper; Sibron.

A

First, as to the limitation on police power to require a person to give breath, urine, and blood samples after a DUI arrest, the implied consent statutes impose certain well-defined restrictions which otherwise exceed Fourth Amendment standards.

Section 316.1932(1)(a), Florida Statutes (1991), provides that any person who accepts the privilege of driving a motor vehicle in this state and who is lawfully under arrest for DUI is "deemed to have given his consent" to the withdrawal of breath and urine samples--but not blood samples--from his or her person and to the scientific testing of such samples. The statute, however, does not provide for the forcible taking of breath and urine samples--which arguably...