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04 Oct 2012

Motorcyclist’s Blood Results Excluded: All Charges Dropped

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PMC was driving a motorcycle on November 20, 2004, at about 10:35 P.M.  He had the misfortune of colliding with the rear of a vehicle at a stoplight-controlled intersection.  Subsequently, PMC was transported to Lawnwood Regional Medical Center in Fort Pierce, Florida, for treatment.

At the hospital, a Florida Highway Patrol (FHP) trooper arranged for a legal draw of PMCs blood.  Attorney Garlands investigation initially focused on the blood test results.  In its discovery materials, the State provided only two pages.  One page simply concluded that the blood-alcohol concentration was 0.166 grams of alcohol per 100 milliliters of blood.  The second page was a chain of custody which showed the date and time of receipt by the Indian River Crime Laboratory.

The defense investigation needed much more laboratory data in order to evaluate the blood testing procedure.  The defense moved for, and successfully obtained, an order compelling production of laboratory data.  After receipt of the laboratory data, Attorney Garland filed a Motion to Strike Presumption of Impairment and to Preclude Admissibility of Blood Test Results Under Section 316.1932 et seq.

Attorney Garland sought to exclude the blood test on three different rationales:

1.    The written request for blood test, executed by Trooper Jones, showed that the blood was involuntarily obtained.  In this case, PMC did not sustain serious bodily injury and, therefore, an involuntary blood withdrawal was not permitted under Section 316.1933(1), because there was no substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

2.    Attorney Garland moved to exclude the blood test results on the basis that the blood was withdrawn on November 21, 2004, at approximately 12:56 A.M., but not received by the laboratory until December 13, 2004.  Neither the discovery materials provided by the State, nor the laboratory documents, showed where the blood kit was stored from the date of collection until the date of transfer to the Crime Laboratory for analysis.  The failure to refrigerate the kit pending submission to the Crime Laboratory for analysis violated FDLE Rule 11D-8.012(5).  This Rule requires that all blood kits be refrigerated when not submitted for analysis within seven days of collection.

3.    Garland’s investigation found a failure to label the blood vials contained within the kit.  The failure to label the blood collection tubes violated FDLE Rule 11D-8.012(4) which provides: Blood collection tubes must be labeled with the following information: Name of person tested, date and time sample was collected, and initials of the person who collected the sample.

St. Lucie County Judge Clifford H. Barnes granted the Motion when the State offered no objection.  Consequently, the blood test results would not be admissible in evidence at any trial.

The defense investigation looked for additional ways to defend the charge.  Further evaluation of the evidence demonstrated that PMC was issued a criminal notice to appear for the offense of not having a motorcycle endorsement for his drivers license.  The defendant was compelled to appear in court on that charge on January 11, 2005, at which time PMC produced his valid license.  The charge was then nolle prosequied.

On discovering this information, Garland realized that the 90-day speedy trial period began when the criminal notice to appear was delivered.  The delivery of a criminal notice to appear constitutes an arrest under the Florida Rules of Criminal Procedure.

On or about February 15, 2005, the State issued an arrest warrant for DUI with property damage or personal injury.  The State did not, however, file an information or other formal charging document at that time.  PMC subsequently surrendered on the arrest warrant on August 2, 2006.  The State filed a formal Information on August 22, 2006.

With these facts in mind, Garland filed a Second Amended Motion to Dismiss (Speedy Trial).  The Motion alleged that the speedy trial clock began to run upon delivery of the criminal notice to appear for the endorsement charge.  The Motion cited Florida Supreme Court authority for the proposition that the States Nolle Prosequi on January 11, 2005, did not stop the clock from running.  Further, the Motion asserted that an arrest warrant did not constitute a formal charge which would have supported the prosecution of the case.  The Motion asserted: The State cannot avoid the rule in State v. Agee [622 So.2d 473 (Fla. 1993)] by simply obtaining an arrest warrant prior to the expiration of the speedy trial period.  Since the Information was filed more than 90 days after PMC had been taken into custody, there would be no 15-day recapture period for the State to bring him to trial.

The State conceded the Motion to Dismiss by announcing a nolle prosequi in open court on March 15, 2007.

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