BLOOD SAMPLE SUPPRESSED IN DUI MANSLAUGHTER CASE



On September 9, 2008, Circuit Judge Larry Schack issued an Order granting the Motion to Suppress filed by Jeffrey H. Garland in the case of State of Florida v. Lorelle Nicole Pye, St. Lucie County Case No. 562007CF2961A.  The case is pending.

The case arose from an automobile accident which occurred on October 24, 2005.  The Florida Highway Patrol (FHP) did not seek a charging document until June 22, 2007.  This extraordinary delay between the crash and the arrest would be explained by the evidence developed at the suppression hearing, to-wit: that no trooper at the scene of the accident observed evidence of impairment by drugs or alcohol.

After the accident occurred, two FHP certified traffic homicide investigators and two additional troopers responded to the scene.  All of the troopers had extensive experience in the detection and prosecution of DUI cases.

Trooper Sandra Batie misadvised Ms. Pye that her license would be suspended if she failed to provide a blood sample.  Judge Schack would later agree that law enforcement cannot compel a blood sample, even in an accident involving death and serious bodily injury, where there is no probable cause to believe that a driver was impaired.

Judge Schack agreed that it was improper for FHP to read implied consent in order to coerce a blood sample.  The exact circumstances of the blood sample were not described in great detail due to vague and uncertain memories of the various troopers who testified at the hearing.  The troopers uncertain, and sometimes contradictory, testimony seemed to elicit some frustration and exasperation on the part of Judge Schack.  The suppression Order recites that “[t]he testimony was remarkable for what little it showed”.

Although the blood sample has been suppressed, there remain multiple counts of vehicular homicide and reckless driving causing serious bodily injury.  It is notable that the suppression Order found that there was no admissible evidence that Defendant was driving, and that any statements made by her during the police investigation were accident report privileged.

Accident reconstructionist/DUI consultant, Rick A. Swope, and toxicologist, Dr. Stefan Rose, assisting the defense in this case.  Discovery continues.

IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR ST. LUCIE COUNTY,
FLORIDA

CASE NO. 562007CF002961A
STATE OF FLORIDA,

Plaintiff,
 
vs.

Lorelle Nicole Pye,

Defendant.
                                                         /

ORDER RE: DEFENDANT’S MOTION TO SUPPRESS

THIS CASE came before the court on April 25, 2008, for a hearing on the defendant’s motion to suppress.  The court finds and orders as follows:

On October 24, 2005, a collision occurred between a truck and a mini-van on S.R. 70 (Okeechobee Road) in Fort Pierce.  The truck collided with the mini-van resulting in the death of Rhonda Brammel.  The allegations are that the collision also caused the death of two unborn children.  While the collision occurred in October 2005, it was not until June 22, 2007, that the initial charging document in this case was filed.

This collision occurred immediately after hurricane Wilma struck St. Lucie County.  Electrical power was out as a result.  At the time of the collision, traffic was light, the signals were not working due to the power outage, it was daylight, clear, and windy.

The defendant was the driver of the truck that hit the mini-van.  The evidence did not establish what time Florida Highway Patrol arrived on the accident scene.  The state was hampered in its presentation as a result of a significant lack of memory by key witnesses as to important details.  In addition, either there was a lack of sufficient detail in reports by certain officers, or the witnesses did not examine the reports to refresh their recollection before testifying.  There was a lack of detail and memory with respect to the names of important witnesses including the name of the individual who identified the defendant as the driver of the truck.  The names of officers and witnesses who took key steps at the scene were not recorded.  This lack of memory and lack of detail made the state’s burden at the hearing extremely difficult and made the court’s evaluation of the evidence more difficult.  (At the hearing the prosecutor appeared to be understandably frustrated by the evidentiary problems.)

Trooper Beatty was unable to identify the defendant in court as the driver of the truck.  The trooper was not able to recall much of what she said that day at the scene.  The trooper was told by a traffic homicide investigator to obtain a blood sample but she could not recall who the investigator was.  The evidence did not establish whether the trooper asked the defendant for consent for a blood sample before or after reading implied consent.  The defendant did give a blood sample.  It was provided after implied consent was read, however exactly what was read by the trooper is not clear.

 
Sergeant Thomas of the Florida Highway Patrol prepared a report and an accident reconstruction based on the statement of the defendant and the statement of another witness.  The sergeant conceded that the defendant’s statements were privileged due to the accident report privilege.  The sergeant testified he was not qualified to do an accident reconstruction at the time of this collision.  He described it as “a basic rear end collision”.  The court is unable to determine what part of state’s exhibit 1 (the accident reconstruction) is based upon accident report privileged information.

Law enforcement did not feel at the time they had probable cause for an arrest for driving under the influence.  The defendant was free to leave after talking to the officers and providing the blood sample.  The evidence is clear that at the time the officers dealt with the defendant after the collision, there was no observable or detectable evidence of impairment from any cause.  At the hearing on the motion the state stipulated that there was no detectable odor of alcoholic beverages, nor any evidence of impairment due to alcohol.  There was no evidence of the speed of the truck at the time of the collision.

The defendant seeks to suppress the results of her blood alcohol testing on the grounds that:

1.    The defendant did not give a voluntary consent to a blood draw but rather acquiesced to police authority.

2.    There was no probable or reasonable cause to believe that the defendant was operating a motor vehicle under the influence to permit the law enforcement officers to obtain a compulsory blood draw.

3.    Any statement the defendant made concerning operation of the truck was privileged under the accident report privilege contained within Florida Statutes section 316.066(7) and therefore could not form the basis of any probable cause or reasonable cause determination.

The state contends that the blood sample obtained from the defendant should be admissible either due to the consent of the defendant to the blood draw, or based on the fact that the officers had probable or reasonable cause to believe that she was operating a motor vehicle under the influence of controlled substances pursuant to either Florida Statute section 316.132 or 316.133.

The state bears the burden of proof to establish consent for the blood draw.  The burden of showing consent has been described by the appellate courts as follows:

 
The starting point for our fourth amendment analysis is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the United States Supreme Court held that warrantless searches “are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions”...Among the established exceptions to the warrant requirement is a search conducted pursuant to consent.  Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).  In order to rely upon consent to justify the lawfulness of a search, however, the state has the burden of proving that the consent was in fact freely and voluntarily given.  Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).  In Florida, the prosecution must show by clear and convincing evidence that the defendant freely and voluntarily consented to the search.  Bailey v. State, 319 So.2d 22 (Fla. 1975); Sagonias v. State, 89 So.2d 252 (Fla. 1956); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978).

McDonnell v. State, 981 So.2d 585, 588 (Fla. 1st DCA 2008) quoting Norman v. State, 379 So.2d 643, 646 (Fla. 1980).  The court in McDonnell also held:

When consent is at issue, the state does not carry its burden of demonstrating voluntary consent when evidence is introduced of submission to or acquiescence in the apparent legal authority of the police to perform a search.  See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Reynolds v. State, 592 So.2d 1082, 1086 (Fla. 1992); Smith v. State, 904 So.2d 534 (Fla. 1st DCA 2005).

Id. At 589.

Consent is not voluntary if it is made only in submission to apparent police authority.  See Hunter v. State, 518 So.2d 304 (Fla. 4th DCA 1988).

State v. Jerome, 541 So.2d 756, 757 (Fla. 4th DCA 1989).

Neither is it disputed that where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (citations omitted).  The state was at a tremendous disadvantage with respect of the quantity and quality of the evidence as outlined above.  The testimony in this hearing fell well short of establishing that the defendant consented to the blood draw.

Turning next to the state’s reliance on the statutory scheme concerning obtaining compulsory blood samples, Florida statute section 316.132(1)(c) provides in relevant part:

 
(c) Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.  As used in this paragraph, the term “other medical facility” includes an ambulance or other medical emergency vehicle.  The blood test shall be performed in a reasonable manner.....Any person who is capable of refusal shall be told that his or her failure to submit to such a blood test will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of the person has been suspended previously as a result of a refusal to submit to such a test or tests, and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor.  The refusal to submit to a blood test upon the request of a law enforcement officer is admissible in evidence in any criminal proceeding.

(Emphasis added.)  Florida statute section 316.133(1)(a) provides:

(1)(a) If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893.  The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test.  The blood test shall be performed in a reasonable manner.  Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person.

(Emphasis added.)  These statutory provisions require that the police have reasonable or probable cause prior to administering a compulsory blood draw.  See State v. Kliphouse, 771 So.2d 16, 22 (Fla. 4th DCA 2000).  The state’s reliance on these sections fails due to lack of proof.  As noted, the testimony was remarkable for what little it showed.  It did not establish either reasonable or probable cause to believe that the defendant was driving or in actual physical control of the vehicle while under the influence.

 
The court can not consider the defendant’s statement that she was the driver of the truck due to the accident report privilege.  State v. Cino, 931 So.2d 164, 168 (Fla. 5th DCA 2006).  Sergeant Thomas conceded that the defendant’s statements were privileged due to the accident report privilege.  Without her admission, there is no evidence she was the driver.  Further, there was no reasonable cause or probable cause to believe that this collision occurred as a result of the defendant being under the influence of alcoholic beverages or controlled substances as required by the statute.  The state stipulated that there was no detectable odor of alcoholic beverages, nor any evidence of impairment due to alcohol.  The evidence established that there was a catastrophic collision, and that the driver of the truck did not operate the vehicle with due care.  There was no evidence of the speed of the truck at the time of the collision.  Sergeant Thomas described it as “a basic rear end collision.”  It would have been pure speculation for the troopers at the scene to have concluded that this collision was the result of the driver being under the influence of controlled substances.  This undoubtedly explains why they did not arrest the defendant at the scene.  Finally the evidence did not establish that the defendant was advised of the effects of a refusal to provide a sample, as required by the statute.

In this case the officers did not have reasonable cause or probable cause, and the defendant did not appear at a medical facility for treatment.  Sections 316.132(c) and 316.133(1)(a) did not provide the police with the means to compel a blood sample from the defendant.  Where the police lack consent for the blood draw, and did not have authority to take blood under either statute, the court must suppress the evidence obtained.  See State v. Schreiber, 835 So.2d 344 (Fla. 4th DCA 2003).  As a result of the foregoing, it is hereby
ORDERED that the motion is granted.
DONE and ORDERED on September 9, 2008, in Chambers, at Fort Pierce, Florida.

LARRY SCHACK
Circuit Judge