State v. SlaneyState v. Slaney
This is an appeal by the state from an order of the Dade County Court granting the defendant Sean Slaney‘s motion to suppress the results of a blood alcohol test conducted on a blood sample involuntarily taken from the defendant by medical personnel at the request of the police; this order was entered in a criminal traffic case in which the defendant was charged with driving a motor vehicle while under the influence of an alcoholic beverage [hereinafter DUI]. In the order under review, the Dade County Court certifies that this case raises a question of great public importance, which question we rephrase as follows:
“If [as here] a police officer [based on probable cause] arrests a [conscious] defendant for driving [a motor vehicle] under the influence [of an alcoholic beverage after a traffic accident in which no person has been killed or seriously injured and
where the administration of a breath or urine test is not otherwise impractical or impossible], may [the officer] require the defendant to submit to [an involuntary] blood withdrawal performed by medically qualified personnel ...?”
We reject the defendant‘s arguments to the contrary and conclude that this court has jurisdiction to entertain this appeal as one taken from a non-final order of the county court certified to be of great public importance.
I
The facts of this case, as found by the trial court in the order under review and supplemented by other undisputed evidence, are as follows:
“The defendant [Sean W. Slaney] was involved in a one-car [traffic] accident [in the late evening hours of May 12, 1992 in Dade County, Florida, when he lost control of the car he was driving, left the public street and ran into a tree]. Police and [f]ire [r]escue responded to the scene. The defendant, who was [conscious аnd] bleeding from his forehead was treated by [f]ire [r]escue and the bleeding was stopped. [After placing the defendant under arrest for driving a motor vehicle while under the influence of an intoxicating beverage1,] [t]he first [police] officer on the scene requested that the [p]aramedic withdraw a blood sample from the defendant[;] however, the [p]aramedic was unable to do so because he lacked the proper equipment. The first officer believed the defendant was not seriously injured.
The second [police] officer that arrived on the scene testified that he reаd to the defendant the [i]mplied [c]onsent [l]aw [from a form;] however, the second officer testified that wherever the words breath or urine appeared [on the form] he substituted the word ‘blood’ [i.e., that the defendant would lose his driver‘s license if he refused to consent to a blood draw]. The second officer further testified that the defendant agreed to give blood only after [the officer] read to the defendant the modified [i]mplied [c]onsent [l]aw. The second officer took the defendant to the hospital where a qualified medical person at [the officer‘s] request withdrew a blood sample from the defendant.”
The defendant was charged with driving a motor vehicle while under the influence of an alcoholic beverage [
The defendant contended below that the police were only authorized to demand a blood sample from a motorist under
II
The law is well settled that it is not an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution, as made enforceable against the states under the Due Process сlause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), for police to obtain a warrantless involuntary blood sample from a defendant who is under arrest for DUI provided (1) there is probable cause to arrest the defendant for that offense, and (2) the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). It is equally well settled, however, that the states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967) (state constitutional provision on search and seizure); Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968) (state statute). In Florida, these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures,
Indeed, it is the established law of this state that Florida‘s implied consent statutes [
“What is at issue here ... is ... the right of the state оf Florida to extend to its citizenry protections against unreasonable searches and seizures greater than those afforded by the federal constitution [through the Fourth Amendment]. This it has done through the enactment of section 322.261, Florida Statues (1975) [now sections 316.1932, 316.1933, Florida Statutes (1991)].”
As further stated by the Fifth District Court of Appeal in State v. McInnis, 581 So.2d 1370, 1374 (Fla. 5th DCA), cause dismissed, 584 So.2d 998 (Fla. 1991),
“One public policy reason for enacting such a statutory scheme [Florida‘s implied consent statutes] is the legislature‘s decision to extend to some motorists driving in Florida greater protection and rights of privacy than are provided by the state or federal constitutions.”
In particular, Florida‘s implied consent statutes (1) limit the power of the police to require a person who is lawfully arrested for DUI to give samples of his/her breath, urine, or blood without the person‘s consent, and (2) prescribe the exact methods by which such samples may be taken and tested. These limitations and prescribed procedures represent higher standards for police conduct in obtaining samples of this nature from a DUI defendant than those required by the Fourth Amendment and are entirely permissible as a matter of state law. Cooper; Sibron.
A
First, as to the limitation on police power to require a person to give breath, urine, and blood samples aftеr a DUI arrest, the implied consent statutes impose certain well-defined restrictions which otherwise exceed Fourth Amendment standards.
Notwithstanding the above implied consent statutes, however, it is clear that a person who is arrested for DUI may volunteer or othеrwise freely consent to give a sample of his/her breath or urine for chemical testing purposes.
2
The Florida Supreme Court in State v. Perez, 531 So.2d 961 (Fla. 1988), has interpreted the above statutes, as follows:
“Thus, the general scheme for determining if a motorist is impaired is: (1) before an arrest, the suspect may consent to or demand a breath test; and (2) after an arrest, the person is deemed to have implicitly consented to a breath test and a urine test.
The first exception to this general scheme is given in section 316.1932(1)(c), whereby a ‘person whose consent is implied’ i.e., is lawfully arrested, is taken for treatment to a medical facility and a breath or urine test is impossible or impractical to perform. Only then may a blood test be requested, subject to the person‘s refusal. The subsection further provides penalties for such a refusal but does not authorize the officer to proceed with the test regardless of the refusal.
The other exception to the general scheme of breath and urine testing is found in section 316.1933(1), the statute in question. Again, this statute expressly authorizes blood tests where an officer has probable cause to believe an impaired driver has caused death or serious injury to a human being. In short, these sections together narrowly define the cirсumstances in which testing for impairment is allowed absent express consent, and they carve out two narrow exceptions to the scheme which allow blood tests.”
Id. at 963-64 (footnote omitted).
Similarly, the Fourth District Court of Appeal in Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988) has interpreted the above statutes as follows:
“We think it is clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in sections 316.1932(1)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described in these statutes do not exist. However, we also recognize that circumstances may occur where it is more convenient for a person to submit to a blood test rather than a breath or urine test. Under such circumstances we see no reason to exclude a voluntary blood test provided the person has been fully informed that the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an alternative. The key to admissibility is that the consent must be knowingly and voluntarily made and not as the result of the acquiescence to lawful authority.”
Notwithstanding the above implied consent statutes, however, it is clear that a person arrested for DUI may, as stated in Chu, volunteer or otherwise freely consеnt to give a sample of his/her blood for chemical testing purposes. A sample of such a person‘s blood may properly be withdrawn under these circumstances as well, quite apart from the implied consent statutes. Chu; see Robertson v. State, 604 So.2d 783, 790 (following State v. Wallin, 195 N.W.2d 95, 98 (Iowa 1972)).
3
It is well settled that the results of a scientific test performed on a blood sample [as well as, presumably, a breath and urine sample] which is involuntarily taken from a defendant in violation of the above provisions of the implied consent statutes — limiting, as they do, the power of the police to require a person arrested for DUI to give such a sample — is inadmissible in evidence at the defendant‘s trial, even though the sample may have otherwise been seized in compliance with Fourth Amendment standards. Indeed, the Florida Supreme Court and the District Courts of Appeal, in a long line of cases, have routinely excluded from evidence the results of a scientific test performed on a blood
B
Second, the implied consent statutes establish certain prescribed methods by which breath, urine, or blood samples may be scientifically withdrawn from a DUI arrestee and later scientifically tested — where the police are otherwise authorized under the implied consent statutes to request or order the withdrawal of such sample in the first instance as discussed above. These detailed рrocedures are generally not required by the Fourth Amendment and, for this most part, exceed Fourth Amendment standards.
In Robertson v. State, 604 So.2d 783 (Fla. 1992), the Florida Supreme Court fashioned a limited exclusionary rule for violations of these scientific withdrawal and testing procedures of the implied consent statutes. Referring to State v. Bender, 382 So.2d 697 (Fla. 1980), wherein the Court upheld the constitutionality of certain of these procedures [i.e., administrative rules promulgated under the implied consent statutes], the Court in Robertson stated:
“In Bender, the Court conducted a thorough analysis of Florida‘s ‘implied consent law’ and its relation to the earlier common law and other evidentiary principles governing the admissibility of expert testimony in a DUI-related prosecution. First, the Bender Court expressly recognized that the implied consent law includes an exclusionary rule prohibiting the use of blood-test results taken contrary to its core policies.[5]
[5]. As is noted more fully below, this exclusionary rule does not prohibit the use of all evidence obtained contrary to the implied consent law, but only such evidence obtained in a manner that is contrary to the core policies of that statute: ensuring scientifiс reliability of the tests, and protecting the health of test subjects. To this extent, the present opinion clarifies the holding of Bender.”
604 So.2d at 789 (footnote 4 omitted).
The Court then noted that application of this limited exclusionary rule can result in the exclusion of breath, urine, or blood sample testing conducted in violation of the above-stated core policies:
“Several cases from the district courts of appeal can be understood as resting on the same policies stated in Bender. For example, in some cases in the district courts have suppressed evidence from blood samples drawn by persons who completely lacked authorization. E.g., Albritton v. State, 561 So.2d 19 (Fla. 5th DCA 1990); State v. Roose, 450 So.2d 861 (Fla. 3d DCA), review denied, 451 So.2d 850 (Fla. 1984). Similarly, such evidence has been suppressed where testing equipment was not properly maintained or stored. Donaldson v. State, 561 So.2d 648 (Fla. 4th DCA 1990), approved, 579 So.2d 728 (Fla. 1991); State v. Wills, 359 So.2d 566 (Fla. 2d DCA 1978). Clearly, the use of unauthorized persons to draw blood and the use of improperly maintained equipment could threaten the health of test subjects. Thus, on this basis, the exclusionary rule of the implied consent law requires that such evidence be suppressed.”
Finally, the Court recognized two exceptions to this limited exclusionary rule:
“[1] In much the same vein, the courts generally have recognized exceptions to the implied consent law‘s exclusionary rule provided those exceptions are consistent with the policies underlying the law. For example, the Iowa court concluded in Wallin that compliance with the statute is not necessary (a) where consent to the test existed on some independent basis, or (b) to the extent that the defendant waived the rights provided by the statute. Wallin, 195 N.W.2d at 98. As to the first of these categories, it is clear that a person only needs the protection of the implied consent law if the testing provisions of the law actually are being invoked by the state. If the defendant has consented to the test, or consent is implied on some basis independent of the DUI laws, then the blood test falls wholly outside the scope of the implied consent law.[7] Likewise, a defendant has complete freedom to voluntarily waive the protections created by the statute.
[7]. In other words, the implied consent statute and its exclusionary rule apply only when blood is being taken from a person based on probable cause that the person has caused death or serious bodily injury as a result of a DUI offense specified in the statutes.”
“[2] Based on the policies elaborated above, we believe that one further exception tо the exclusionary rule exists. We
hold that the implied consent law does not absolutely forbid the admission into evidence of blood-alcohol test results and related testimony produced by an unlicensed expert, subject to two important provisos. First, the blood must have been drawn by a person authorized to do so by the implied consent statute. See [State v.] Gillman [390 So.2d 62 (Fla. 1980)]; § 316.1933(2)(a), Fla. Stat. (1987) . And second, the evidence so produced cannot be admitted unless the state establishes the three-prong predicate described in Bender.”
604 So.2d at 791 (footnote omitted).
”Bender noted that, prior to the adoption of the implied consent law, scientific test results for intoxication werе admissible
‘if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.‘”
Contrary to the state‘s argument, it is important to understand that the above limited exclusionary rule and its exceptions refer solely to violations of the implied consent statutes concerning the scientific methods by which breath, urine, and blood samples may be withdrawn and later tested. This rule and its exceptions presuppose that the police had the аuthority under the implied consent statutes to request or order a DUI arrestee to give the underlying breath, urine, or blood sample in the first instance, else these scientific withdrawal and testing provisions become totally inapplicable. Robertson, 604 So.2d at 790 n. 7. Where the police lack such authority in the first instance under the implied consent statutes, the ensuing involuntary breath, urine, or blood sample obtained, as well as the results of any scientific tests performed on the sample, are inadmissible in evidence at the DUI arrestee‘s trial under the exclusionary rule followed by the Florida Supreme Court and District Courts of Appeal in the Sambrine-Perez line of cases, discussed previously.7 Indeed, the Robertson Court implicitly assumes the viability of this well-established exclusionary rule.
III
Turning to the instant case, it is undisputed that the police had no authority under the implied consent statutes to request a blood sample from the defendant or to advise the defendant that he would lose his driver‘s license if he refused to consent to a blood withdrawal. Although it is assumed for purposes of this appeal that the police had probable cause to arrest the defendant for driving a motor vehicle while under the influence of an alcoholic beverage, there was utterly no showing below that “a breath or urine test [was] impractical or impossible,” and so there was no basis under
Beyond that, there was utterly no basis for an involuntary blood withdrawal from the defendant under
Because the blood sample taken from the defendant in this case was entirely unauthorized under
First, it is urged that the involuntary blood withdrawal obtained from the defendant complied with Fourth Amendment standards under Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) because (1) there was probable cause to arrest the defendant for DUI, and (2) the blood was withdrawn from the defendant in a reasonable manner pursuant to medically approved procedures. This argument, however, overlooks the fact that Florida is entitled, as a matter of state law, to impose higher standards on its police officers when obtaining an involuntary blood withdrawal from a person lawfully arrested for DUI than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). Florida has done precisely that by enacting
Second, the state argues that the blood sample was scientifically withdrawn from the defendant and subsequently tested in full compliance with the “core policies” of the implied consent statutes and therefore — notwithstanding the violation of
For the above-stated reasons, the county court order under review suppressing the results of a blood test performed on a blood sample involuntarily drawn from the defendant at the request of the police in violation of
Affirmed.