Woodward v. Duval Motor Co.

• Decision Date: 09 December 1980
• Docket Number: No. PP-193,PP-193
• Parties: David B. WOODWARD, Jr., Appellant, v. DUVAL MOTOR COMPANY, Liberty Mutual Insurance Company, City of Jacksonville, Florida and Travelers Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 700

391 So.2d 700

David B. WOODWARD, Jr., Appellant, v. DUVAL MOTOR COMPANY, Liberty Mutual Insurance Company, City of Jacksonville, Florida and Travelers Insurance Company, Appellees.

No. PP-193.

District Court of Appeal of Florida, First District.

Dec. 9, 1980.

Rehearing Denied Jan. 16, 1981.

Allan P. Clark, of Caven & Clark, Jacksonville, for appellant.

Walter L. Robison, of Zisser, Robison & Spohrer, Jacksonville, for appellees.

ERVIN, Judge.

In this personal injury action, Woodward appeals a judgment entered following a jury verdict absolving appellees from any liability. Woodward argues, among other things, that the trial court erred in excluding the results of a field sobriety test made at the scene of an automobile accident. Finding that those results are not protected by the statutory provisions of Section 316.066(4), Florida Statutes (1977), we reverse in part and remand.

While walking across the street, Woodward was struck by an automobile and injured. Shortly after the accident, a sheriff's officer administered a field sobriety test to the driver who, unable to keep his balance or touch his nose, failed the test. At trial, the court held that since the test's results were obtained prior to an arrest, they were privileged information because part of an accident investigation, and therefore inadmissible.

Those provisions of Section 316.066(4), making confidential accident reports "by persons involved in accidents," were enacted by Chapter 20578, § 17, Laws of Fla. (1941). As first interpreted, the statute was generally applied to exclude statements made by motorists or other persons involved in accidents that comprised part of the report such persons were required by law to give. Stevens v. Duke, 42 So.2d 361 (Fla.1949); Herbert v. Garner, 78 So.2d 727 (Fla.1955); Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3d DCA 1961). Later, the statute was construed as excluding nontestimonial evidence (an analysis for blood alcohol content) because the test formed a portion of the officer's accident report. Cooper v. State, 183 So.2d 269 (Fla. 1st DCA 1966). The Cooper rule was approved by the Florida Supreme Court in State v. Coffey, 212 So.2d 632 (Fla.1968), the court observing that since the officer in Cooper caused the blood sample to be withdrawn for the purpose of completing his accident report, doubt was cast upon the "capacity of the defendant to understand that she was not required to take the blood test." 212 So.2d at 634. Coffey, however, in the case before it, upheld the admissibility of the blood test which was obtained with the defendant's consent.

State v. Coffey permitted the admission of blood test results as evidence if three conditions were met: (1) the motorist consents to the test, (2) there is probable cause to believe a crime was committed in the operation of a motor vehicle, and (3) the accident report was completed before the test is given. The Coffey rule was modified by the Florida Supreme Court's last construction given the statute in State v. Mitchell, 245 So.2d 618 (Fla.1971), holding it immaterial whether a defendant gives consent to the withdrawal of blood because a blood sample is not a self-incriminating, testimonial communication which is barred by the Fifth Amendment, ¹ citing Schmerber v. California, 384 U.S. 757, 763, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Neither is it necessary to place a defendant under arrest at the time the sample is taken so long as there is a " 'clear indication' of 'relevance and likely success of a test of the (defendant's) blood for alcohol' " as well as a compliance with the requirements of Section 322.261, Florida Statutes. 245 So.2d at 622. Finally, the accident report need not be filed or completed prior to the time the blood test is administered. However, Section 316.066 may still bar the use of blood alcohol analyses as evidence if "the information sought to be excluded was taken by the investigating officer for the purpose of making his accident report and formed a basis for that report." Id. at 623.

Whatever construction was placed upon Section 316.066 by the courts as to tests for alcohol, the statute has never been interpreted as either sanctioning or disapproving field sobriety tests. ² Both State v. Coffey and State v. Mitchell have held that the statute applies only to "statements" ³ the driver is compelled to make in order to comply with his statutory duty, and that the statute, being in derogation of common law, must be strictly construed " 'in the sense that no situation should be held within its operation to which the legislature did not clearly intend to accord the privilege.' " State v. Coffey, supra at 635; Wise v. Western Union Telegraph Co., 177 So.2d 765 (Fla. 1st DCA 1965). Given that construction, we do not consider it was within the rational contemplation of the legislature that the results of a field sobriety test, involving as they do an officer's observations of an inebriate's compelled responses to such orders that he touch his nose, walk a straight line, or perform other feats of agility, be clothed with the protective mantle of statutory immunity, notwithstanding that those observations may later be reduced to writing and become part of the accident report.

The only nontestimonial communication ever held barred by the statute's provisions from introduction into evidence was a chemical test for blood alcohol content. See Cooper v. State, supra. Certainly there existed compelling public policy reasons for barring such tests for use against the inebriate at trial unless he gave his consent, even in the absence of any Fifth Amendment inhibition making them inadmissible. The preclusion of alcohol analyses as evidence has historical antecedents, a fact noted in Coffey by its quote from Touchton v. State, 154 Fla. 547, 18 So.2d 752, 753 (1944):

" 'Evidence resulting from a medical examination of accused for the purposes of the prosecution rather than for treatment, after an accusation has been made against him, is admissible where, in the absence of any compulsion, accused submits or consents to the examination.' " (e. s.)

Or, as stated in Wragg v. Griffin, 185 Iowa 243, 252, 170 N.W. 400, 2 ALR 1327, 1333 (1919): "Even when charged with the gravest of crimes, (a defendant) cannot be compelled to give evidence against himself, nor can the state compel him to submit to a medical or surgical examination, the result of which may tend to convict him of a public offense..." See also State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437 (1902); State v. Newcomb, 220 Mo. 54, 119 S.W. 405 (1909). The same repugnance does not attend the results of a field physical sobriety test, which obviously are not obtained-as is a blood sample-by extracting a defendant's body fluids for the purpose of prosecuting him.

Since we are required to place a strict interpretation upon the statute, we decline to extend Section 316.066(4)'s protective immunity to any nontestimonial communication other than a chemical test for alcohol, which, as we have previously observed, fn. 1, is now governed by the procedure provided in Section 322.261. We therefore conclude that the statute does not bar the results of a physical coordination test into evidence even though they may have been the product of coercion ⁴ and used by the officer as an aid in completing his accident report.

The only remaining obstacle to the reception of such evidence is the unreasonable search and seizure clause of the Fourth Amendment. A seizure of a person's body is a "serious intrusion upon the sanctity of the person ...." Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the detaining officer's conduct will be tested "by the Fourth Amendment's general proscription against unreasonable searches and seizures." 392 U.S. at 20, 88 S.Ct. at 1879. For example, detentions for the sole purpose of obtaining fingerprints are subject to the constraints of the Fourth Amendment. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Thus, before one may stop a motorist and require him to submit to a physical sobriety test, there must be, as stated in State v. Mitchell, "a clear indication of relevance and and likely success of a test ... for alcohol.' " Here the requirements of the Fourth Amendment were fully complied with because, before conducting the test, the officer smelled alcohol on the motorist, noticed his gait was unsteady, and his speech...