Gulley v. StateGulley v. State
Appellant, defendant below, appeals his conviction for vehicular homicide. He cоntends that the results of a blood alcohol test were erroneously admitted into evidence at his trial, and that such error injuriously affected his substantial rights, including his right to a fair trial.
In November 1982, defendant, while driving his truck, was involved in a collision with another vehicle. A passenger in the other vehicle died as a direct result of the collision. Defendant was ultimately
Shortly after the collision, defendant (who had, himself, been injured) agreed to allow a sample of his blood to be drawn at the hospital to which he had been takеn, so that a blood alcohol test might be performed. Prior to trial, defendant moved to suppress the results of the blood alcohol test. Among the grounds raised in support of his motion were that the blood sample had not been drawn by “a physician, registеred nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician,” as required by
A hearing was held on the motion to suppress. At that hearing, testimony established unequivocally that the person who had drawn the blood sample was not at the time “a physician, registered nurse, or duly licensed clinical laboratory technologist or cliniсal laboratory technician,” as required by
Review of the trial transcript discloses that the State‘s theory of the case was that the collision and resulting death would not have occurred but for the fact that defеndant was intoxicated. Defendant‘s theory of the case, on the other hand, was that he had not been under the influence of alcohol; that the collision was nothing more than a tragic accident, caused in principal part by a malfunctioning trаffic light which led defendant to believe, mistakenly, that he had the right-of-way; and that, while defendant may have been negligent, his negligence did not reach a level sufficient to justify imposition of criminal penalties.
The testimony at trial again established unequivocаlly that the person who had drawn the blood sample was not at the time “a physician, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician,” and that the blood had not been “collected in a vial ... containing an acceptable anticoagulant substance.” In addition, the testimony revealed for the first time that the person who had actually analysed the blood did not possess a permit from the Department of Health and Rehabilitative Services to do so, as required by
A pathologist was allowed to testify at length regarding the effects of alcohol on the human body. Over objeсtion, he was also allowed to testify that, based upon the results of defendant‘s blood alcohol test, at the time of the collision defendant‘s blood alcohol content was between 0.11 and 0.155; that Florida law prohibits a person from driving when his blood alcohol content is greater than 0.10; and that an average person having a blood alcohol content between 0.11 and 0.155 would be intoxicated.
According to the Trooper who first arrived at the scene, defendant had a head injury, had a strong odоr of alcohol and did
A witness at the scene testified that he thought originally that defendant was intoxicated because his speech was slurred. However, he also testified that he had since discovered that defendant‘s speech is not normal, as a result of which he changed his opinion regarding defendant‘s intoxication at the time оf the collision. He also said that defendant told him at the scene that he had thought the light was green. Another witness, who had seen the collision, testified that it was dark at the time; that defendant was in front of him, traveling in the same direction; that the traffic light was not functioning properly; that defendant had not been speeding; that parked cars were obstructing the view in the direction from which the vehicle in which the decedent was a passenger was coming; that defendant was driving in “a safe normal fashion” and not weaving; that, immediately after the collision, defendant did not smell of alcohol or appear to be intoxicated; and that defendant “was in a state of shock.”
A barmaid testified that on the afternoon of the collision defendant had come to the neighbоrhood bar where she worked and had a sandwich and three beers. She said that defendant had been coming in for some time, about once a week; that he came in principally to play pool, rather than to drink; that she had never seen him drunk; that he did not appear to have had any alcohol before coming in; and that he did not become drunk or “impaired” while there.
The paramedic who treated defendant at the scene and transported him to the hospital testified that he did not believe defendant was intoxicated. Similarly, a patron at the bar testified that he saw defendant there about an hour and a half before the collision; that defendant had one beer and a sandwich while he was there; and that defendant appеared neither drunk nor impaired.
Finally, defendant testified that he arrived at the neighborhood bar about three hours before the collision and had a sandwich and three beers. He said that he had had nothing to drink before arriving. According to defendant, he left thе bar about an hour before the collision and returned to his office, which was nearby. He said that he stayed there a short time and then left for home. He did not consume any alcoholic beverages after leaving the bar. He testified that as he approached the intersection where the collision occurred he did not see a red or yellow light, so he assumed the light was green and proceeded into the intersection. He said that the beers he had had earlier had nothing to do with the collision. He also testified that he believed he was a good driver.
During closing argument, the prosecutor emphasized the pathologist‘s testimony that, based on the results of the blood test, defendant was intoxicated. In addition, he repeatedly argued to the jury that, because
The jury found defendant not guilty of manslaughter by an intoxicated motorist, but guilty of vehicular homicide.
Our legal analysis must commence with the undisputed fact that
The courts of this State have on numerous occasions been called upon to determine the admissibility of test results obtained in violation of statutory directives similar to those violated in this case. The decisions have uniformly held that such results are inadmissible. See, e.g., Strong v. State, 465 So.2d 549 (Fla. 3d DCA 1985); State v. Roose, 450 So.2d 861 (Fla. 3d DCA 1984), pet. for rev. den., 451 So.2d 850 (Fla. 1984); State v. Potter, 438 So.2d 1085 (Fla. 2d DCA 1983); Campbell v. State, 423 So.2d 488 (Fla. 1st DCA 1982). We are of the opinion that these decisions are correct and that it was, therefore, error to admit the blood alcohol test results and expert testimony regarding the results into evidence. The magnitude оf the error was even greater in this case because not one, but three, statutory directives were violated.
The State argues that even if it was error to admit the test results and expert testimony regarding those results into evidence, such error was harmless (and, therefore by implication, did not injuriously affect defendant‘s substantial rights) because there was sufficient other independent, competent evidence to support the jury‘s verdict on the vehicular homicide count and the testimony regarding the test results could not have contributed to the jury‘s verdict on that count. The Court rejects this argument.
An essential element of the offense of vehicular homicide is proof beyond a reasonable doubt that the defendant operated a motor vehicle “in a reckless manner likely to cause the death of, or great bodily harm to, another.” McCreary v. State, 371 So.2d 1024 (Fla. 1979). The State‘s entire case was built on the contention that defendant had been “reckless” because he was intoxicated at the time of the collision. The рrosecutor repeatedly argued to the jury that the only explanation for defendant, a good driver, having been involved in the collision was the fact that he was intoxicated. In fact, his last words to the jury were: “This man was intoxicated, and that is why he did that... .” The competent еvidence regarding defendant‘s sobriety was patently in conflict. Other competent evidence suggests momentary inattention as strongly as it suggests “recklessness.” Given the conflicting competent evidence, this Court believes that the testimony regarding the test results and the expert opinion based on those results must have been given considerable, if not decisive, weight by the jury on the issue of “recklessness.” Therefore, the erroneously admitted
This matter is reversed and remanded for a new trial on the vehicular homicide charge. On retrial, no evidence or testimony regarding the results of the blood alcohol test shall be permitted.
REVERSED AND REMANDED, WITH DIRECTIONS.
LETTS and WALDEN, JJ., concur.