McDonald v. StateMcDonald v. State
On April 20, 1977 an information was filed charging petitioner with the offenses of driving while under the influence of alcohol and unlawful blood alcohol. These charges stem from an accident on the morning of Saturday, March 26, 1977, when petitioner‘s car struck a St. Petersburg city bus. While trying to close a wound on petitioner‘s lip, which later required fifteen stitches, a paramedic detected a slight odor of alcoholic beverages on the petitioner‘s breath. The paramedic suggested to a St. Petersburg police officer that a blood sample be taken from the petitioner. Based on this request, and his own observation of the petitioner‘s imbalance and odor of alcoholic beverages on the petitioner‘s breath, the police officer placed petitioner under arrest and asked him to take a “breath test” or perform the “field sobriety test“. The petitioner refused to take the tests and requested his own physician and attorney.
As a result of the petitioner‘s refusal, he was taken to the Bayfront Medical Center where a blood sample was taken from petitioner against his will and without his consent, at a time wherein he was not incapacitated and was fully conscious and capable of granting or refusing permission for that procedure.
Upon being charged as aforesaid, petitioner filed a motion to suppress any testimony regarding the taking of a blood sample, testimony relating to the test of that blood sample, and the results of said test. Petitioner alleged that the entire procedure was accomplished in violation of
The State took an interlocutory appeal to the circuit court. The suppression order was reversed in a written opinion stating that the law is that in driving while intoxicated cases, the driver is subject to the taking of blood samples even without his consent and the driver has no right to refuse. Petition for rehearing was denied and this timely petition for writ of certiorari was filed.
The petitioner brings to our attention three points. However, in view of our decision below, it will be necessary to discuss only one. That point is whether
This cause was argued before this court on May 1, 1978. We withheld our opinion as an almost identical case, State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977) was, at that time, before the Supreme Court of Florida for its consideration. The Supreme Court of Florida has now acted upon the Riggins case, dismissing the State‘s petition for writ of certiorari and denying the State‘s petition for rehearing. State v. Riggins, Case No. 52,154, 362 So.2d 1056 (Fla. 1978).
Initially, we believe we must make certain the reader understands we have not been called upon to and we are not ruling upon whether there is a constitutional violation in the taking of one‘s blood without consent. We are, rather, construing
As earlier noted, the facts of the Riggins case, though somewhat more gross, are practically identical with the case sub judice. As stated in the Riggins case,
As did Judge Downey, the author of the Riggins decision, so do we excerpt here a portion of an article appearing in the University of Miami Law Review wherein the writer opined: “Paradoxically, even though the driver has `consented’ to a chemical test, the statute provides that he may refuse to submit.”1 Paradoxically, it does appear, but the language and the intent of the legislature is patently clear else it would have not so provided had its intent been otherwise.
Accordingly, we hold that
GRIMES, C.J., and OTT, J., concur.