West v. State, s. 88-2561

• Decision Date: 22 November 1989
• Docket Number: 88-2586 and 88-2587,Nos. 88-2561,88-2562,88-2585,s. 88-2561
• Citation: 553 So.2d 254,14 Fla. L. Weekly 2701
• Parties: 14 Fla. L. Weekly 2701 Russell WEST, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 254

553 So.2d 254

14 Fla. L. Weekly 2701

Russell WEST, Appellant, v. STATE of Florida, Appellee.

Nos. 88-2561, 88-2562, 88-2585, 88-2586 and 88-2587.

District Court of Appeal of Florida,

Fourth District.

Nov. 22, 1989.

Clarification Denied Jan. 10, 1990.

Henry Lee Paul of Lazzara, Caskey, Polli, Gillick and Paul, P.A., Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.

GUNTHER, Judge.

Russell West (West) appeals the judgments of conviction and sentences for DUI manslaughter, driving with a suspended license and violation of probation. We reverse as to the DUI conviction but affirm the conviction for driving with a suspended license and the revocation of probation.

We agree with West's assertion that the trial court committed reversible error in admitting evidence that he had a trace of valium in his blood. Although the state elected only to charge and prosecute West on alcohol-based DUI manslaughter, the state, over defense objection, introduced evidence that West was driving under the influence of alcohol as well as a trace amount of valium. Since the expert testimony was that the valium had no measurable effect on West's driving, the evidence concerning valium had no probative value or relevance to the charge of driving under the influence of alcohol and it was unfairly prejudicial. Thus, it should have been excluded. See State v. McClain, 508 So.2d 1259 (Fla. 4th DCA 1987), aff'd. 525 So.2d 420 (Fla.1988).

West correctly asserts that the admission into evidence of his prejudicial statements and admissions were violative of the accident investigation privilege set forth in § 316.066, Fla.Stat. (1987).

§ 316.066(4) provides in pertinent part:

Each accident report made by a person involved in an accident shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes ... No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident A dispute arose in the instant case as to the admissibility of statements or admissions made by West to police officers after his automobile accident. Such admissions, when made in the context of an accident investigation, are inadmissible pursuant to the above statute which requires a driver to cooperate in the preparation of an accident report. However, they are admissible if uttered voluntarily in the course of a criminal investigation after the appropriate Miranda warnings have been given. Recognizing that it may be difficult for a defendant to realize when an accident investigation has ended and a criminal investigation has begun, courts have held that unless a defendant has been apprised by police that the questions being asked are part of a criminal investigation, the statements made in response to those questions will be deemed privileged pursuant to § 316.066(4). Elder v. Robert J. Ackerman, Inc., 362 So.2d 999 (Fla. 4th DCA 1978); Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3d DCA 1961).

In the instant case, West was subjected to express questioning while in police custody both before and after being informed of his Miranda rights. He made prejudicial statements to Officer Schuller (while being transported in the back of the police car to the hospital for blood and urine tests after being placed under arrest), and to Investigator McGrew (while at the hospital after being informed of his Miranda rights and requesting an attorney). Because the police never apprised West of the distinction between the accident and criminal phases of the investigation, we hold that the statements at issue fall within the accident investigation privilege and are thus inadmissible pursuant to § 316.066(4).

Citing Rolle v. State, 528 So.2d 1208 (Fla. 4th DCA 1988), West contends that the trial court committed reversible error by instructing the jury as to the blood alcohol level results and the prima facie findings and rebuttable presumptions to be derived therefrom. The disputed portion of the jury instruction is as follows:

If you find from the evidence, number one, that the defendant had a 0.05 percent or less by weight of alcohol in his blood, he is presumed not to be under the influence of an alcoholic beverage to the extent his normal faculties are impaired. You may disregard the presumption if it has been rebutted by other evidence. Number two, that the defendant had in excess of 0.05 percent but less than 0.10 percent by weight of alcohol in his blood, there is no presumption that the defendant was or was not under the influence of an alcoholic beverage to the extent that his normal faculties were impaired. Such facts, however, may be considered with other competent evidence in determining whether the defendant was under the influence of an alcoholic beverage to the extent his normal faculties were impaired. Three, that the defendant had 0.10 percent or more by weight of alcohol in his blood, it's prima facie evidence that the defendant was under the influence of an alcoholic beverage to the extent that his normal faculties were impaired.

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in...