Thomas v. State, 2D00-5425.
| Citation | 820 So.2d 382 |
| Decision Date | 29 May 2002 |
| Docket Number | No. 2D00-5425.,2D00-5425. |
| Parties | Kelly A. THOMAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
George M. Thomas of George M. Thomas, P.A., Fort Lauderdale, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.
Kelly Thomas appeals her convictions for driving under the influence (DUI) with serious bodily injury1 and DUI with personal injury.2 As to both convictions Thomas argues that the trial court erred in denying her motion to suppress the blood alcohol test results obtained for medical purposes. She also argues that the trial court erred in denying her renewed motion for judgment of acquittal as to the DUI with serious bodily injury conviction. We affirm.
At trial, the primary evidence presented to support the DUI in both offenses was the blood alcohol content of Thomas's blood drawn for medical purposes. This information was contained in Thomas's medical records at the hospital, where she was taken immediately after the accident which gave rise to the charges. Thomas moved to suppress the results of the blood test on the ground that they were first obtained by the investigating officer interrogating the nurse who attended Thomas without Thomas's consent and without a subpoena or proper notice. Thomas also moved to suppress the same blood test results contained in Thomas's medical records which the State obtained pursuant to a subpoena. Thomas contended the subpoena was issued in violation of section 395.3025, Florida Statutes (1999).
In its order denying the motion to suppress, the trial court determined that the State complied with the notice requirement of section 395.3025(4)(d) and that Thomas was given a reasonable period of time within which to object to the issuance of the subpoena, but failed to do so. We agree with the trial court's ruling. Furthermore, the fact that the officer initially requested and obtained, from the medical staff, the blood alcohol content of the blood drawn in the course of Thomas's treatment, instead of specifically requesting a blood draw pursuant to section 316.1933(1), does not warrant exclusion of the medical records subsequently obtained pursuant to the State's subpoena. On the facts of this case, we conclude that the officer would have been authorized to request a blood draw. And, pursuant to section 316.1933(2)(a), "the failure of a law enforcement officer to request the withdrawal of blood shall not affect the admissibility of a test of blood withdrawn for medical purposes." Moreover, even if we concluded that the officer did not have probable cause to request a blood test pursuant to section 316.1933(1), on this record, the officer's verbal request for the nurse to tell him the blood test results does not constitute the type of governmental misconduct that would warrant exclusion of the medical records subsequently obtained through the State's subpoena issued after proper notice to Thomas. See State v. Johnson, 814 So.2d 390 (Fla.2002)
. Therefore, we affirm the denial of the motion to suppress and the admission into evidence of the medical records.
We also affirm the trial court's denial of Thomas's renewed motion for judgment of acquittal as to the DUI with serious bodily injury conviction, which is a permissive lesser-included offense of DUI manslaughter originally charged in count I of the information. Thomas argues that the trial...
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...fundamental error to convict Mr. Ray. An extensive body of case law has developed from Ray.6 This court followed Ray in Thomas v. State, 820 So.2d 382 (Fla. 2d DCA 2002). In Thomas, we affirmed a conviction for driving under the influence (DUI) with serious bodily injury, even though this o......
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Frank v. State
...of the law does not equate to good faith. Sneed v. State, 876 So.2d 1235, 1238 (Fla. 3d DCA 2004). Relying on Thomas v. State, 820 So.2d 382 (Fla. 2d DCA 2002), the State also urges a "no harm, no foul" analysis, arguing that because the test results were subsequently obtained pursuant to a......
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State v. Kutik, 5D04-1349.
...obtained a second time through proper compliance with the subpoena and notice requirements. The court noted that, in Thomas v. State, 820 So.2d 382 (Fla. 2d DCA 2002), rev. denied, 894 So.2d 973 (Fla.2005), the Second District affirmed an order denying a motion to suppress, concluding that ......
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State v. Salle–Green, 2D10–5638.
...The trooper's actions do not amount to bad faith requiring the suppression of Salle–Green's medical records. See Thomas v. State, 820 So.2d 382, 383–84 (Fla. 2d DCA 2002) (noting that the officer's verbal request for the nurse to tell him the defendant's blood test results did not warrant e......