STATE оf Florida, Petitioner, v. John Edward MITCHELL, Respondent.
No. 39223.
Supreme Court of Florida.
March 3, 1971.
245 So. 2d 618
BOYD, Justice.
Joe P. Yanchuck, of Earle, Jones, Chambers & Carey, St. Petersburg, for respondent.
BOYD, Justice.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 227 So.2d 728. Jurisdiction is based on conflict between thе decision sought to be reviewed and the decision of this Court in Wilson v. State1 and the decision of the District Court of Appeal, Fourth District, in Gay v. City of Orlando.2
Mitchell, respondent herein, while speeding at 60 miles per hour in a 35 mile per hour zone, ran a red light and killed two people. Three persons, including two police officers, were eye witnesses to the accident. While Mitchell, who was “shaken up” and received cuts and bruises, was in the hospital, a laboratory technician, at the direction of a police officer, took a blood sample from Mitchell which was ultimately
A four-count information was filed charging two counts of manslaughter by culpable negligence in the driving of an automobile, one count for each victim, and two counts of manslaughter of the same two victims by driving while intoxicated. The jury found Mitchell not guilty on the two counts of manslaughter by intoxication and guilty on the two counts of manslaughter by culpable negligence.
On appeal, the District Court reversed the conviction on the grounds that the blood taken from Mitchell without his consent after the accident violated his constitutional guaranties against compulsory self-incrimination аnd unreasonable search and seizure so that the blood-taking evidence was inadmissible. The District Court stated that even though Mitchell was acquitted of the manslaughter-intoxication count, evidence of any inebriation on his part at the time of the accident assumed a “critical position оf importance” in the case against him for manslaughter through culpable negligence. In its holding the District Court distinguished the decision of the United States Supreme Court in Schmerber v. California,3 on the grounds that in that case the blood sample was taken from Schmerber while he was actually under arrest and in custody upon a valid criminal charge, whereas in the instant case Mitchell was neither under arrest nor under police detention at the time the blood sample was taken. In reaching its conclusion, the District Court also found that the evidence was privileged under
The decision of the District Court creates clear and unavoidable conflict with the decision of this Court in Wilson v. State,5 supra, wherein we held:
“The contention of defendants of deprival of constitutional rights in the taking of blood samples from them and in introducing into evidence the results of tests from such samples is fully answered adversеly to them in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. In that case this precise question was raised and it was held that the imposition of a compulsory taking of a blood sample from an accused for tests and the use of results of such tests in evidence at his trial do not violate his constitutional rights to due process оf law, his privilege against self-incrimination, his right to counsel, or his right against unreasonable searches and seizures.”
There is also conflict with the decision of the District Court of Appeal, Fourth District, in Gay v. City of Orlando, supra, wherein it was held that the administration of a breathalizer tests occupies the same status as a blood test and does not violate defendant‘s privilege against self-incrimination. The District Court was apparently unaware of the Wilson and Gay decisions and these decisions are not mentioned in the decision below.
The decision sought to be reviewed marks a radical departure from both federal and state authorities on the subject. All of respondent‘s contentions, except the one relating to
“[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his feаtures with a photograph in proof.”
The Schmerber case goes on to recognize that:7
“[B]oth federal and state courts have usually held that it [privilege against self-incrimination] offers no protection against compulsion to submit to finger-printing, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling `communications’ or `testimony,’ but that compulsion which makes a suspect or accused the source of `real or physical evidence’ does not violate it.”
The United States Supreme Court in Schmerber also rejected the contention that taking of the blood sample constituted an unreasonable search and seizure and held that there was plainly probable cause for the officer to believe that Schmerber was undеr the influence of intoxicating liquor.
The facts in the Schmerber case are very similar to those in the case at bar. Schmerber, however, refused to submit voluntarily to the blood test on the advice of his counsel. The record in the instant case, on the other hand, does not indicate that Mitchell objected to the bloоd test in any way. The District Court states, however: “Mitchell did not consent to the blood taking, nor was he even asked.” Under the decisions of the United States Supreme Court, consent is immaterial. In Breithaupt v. Abram,8 the United States Supreme Court held that the taking of blood from an unconscious driver immediately after the accident did not violate due process of law, stating:9
“The test upheld here is not attacked on the ground of any basic deficiency or of injudicious application, but admittedly is a scientifically accurate method of detecting alcoholic content in the blood, thus furnishing an exact measure uрon which to base a decision as to intoxication. Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield. The States, through safety measures, modern scientific methods, and strict enforcement of traffic laws, are using all reasonable means to make automobile driving less dangerous.
“As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test оf the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish innocence, thus аffording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence,
the individual‘s right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighеd by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions.”
But the District Court in the instant case points out that Schmerber was under arrest at the time the bloоd sample was taken, whereas Mitchell was not. The question is not whether the driver has been formally placed under arrest at the time the blood sample was taken, but whether there was a “clear indication” of “relevance and likely success of a test of petitioner‘s blood for alcohol,”10 and whether the requirements of
The blood test provided for in
We are of the opinion that the Legislature foresaw the difficulty and inutility of attempting to arrest an unconscious person or one in shock or on the operating table of a hospital.13 It should be pointed out that the blood test, as provided for use in
We hold, therefore, that it is unnecessary either under thе Federal or Florida Constitutions or under
Respondent Mitchell has never contended that the blood test was improperly administered to him because some other test could have been given. Mitchell was “considerably shaken up” and received cuts and bruises in the accident. He was apparently incapacitated to such an extent as to render the other tests impractical. The blood was extracted at the hospital by a laboratory technician as required by the Statute.
We turn now to the holding of the District Court that the evidence obtained as a result of the blood test in the instant case was also inadmissible because of
“All accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting and shаll 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, * * *.”
The District Court has construed our decision in State v. Coffey,14 as precluding, under
“And we do not think that the Legislature intended Sec. 317.171, supra, to havе the effect of shielding a person suspected of committing a crime in the operation of a motor vehicle from any investigation whatsoever. The fact that the crime was committed in the operation of a motor vehicle is pertinent to the highway safety program of this State; but it does not entitle the person suspected of or charged with committing such a crime to any special treatment insofar as the determination of his guilt or innocence is concerned. In our opinion, he is entitled to the same constitutional safeguards as any other person suspected of or charged with a crime — no more and no less.”
The test for the statutory exclusion under
It is so ordered.
ROBERTS, C.J., and ERVIN, ADKINS and DREW (Retired), JJ., concur.