FRANCIS BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Francis Brown appeals his convictions for vehicular homicide and manslaughter while intoxicated, challenging the admission of a blood sample taken over his express objection. The court reverses, holding that Florida's implied consent law does not permit law enforcement to take a blood sample from a conscious person who verbally objects.
The trial court erred in denying appellant's motion to suppress the blood sample. Florida's implied consent law does not authorize the taking of a blood sample from a conscious person who expressly objects to the procedure.
[1] A blood sample taken from a person suspected of driving under the influence of alcohol cannot be admitted into evidence if the person expressly objects to the taking of t…
[2] A trial court errs in denying a motion to suppress a blood sample taken from a defendant who expressly objected to its collection.
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Join FLexlaw to unlock all legal intelligence“Appellant was conscious and verbally objected when the blood sample was taken by a doctor at the instruction of the investigating police officer.”
Establishes the factual basis for the suppression issue—that Brown explicitly refused consent while conscious and aware.
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Join FLexlaw to unlock all legal intelligenceOn the night of the incident, a blood sample was taken from appellant Brown by a doctor at the direction of a police officer investigating a driving-u…
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PER CURIAM.
Francis Brown appeals his convictions for vehicular homicide and manslaughter by the operation of a motor vehicle while he was intoxicated.1 We reverse.
On the night of the incident which gave rise to the charges against appellant a blood sample was taken from him for the purpose of determining the alcohol content of his blood. Appellant was conscious and verbally objected when the blood sample was taken by a doctor at the instruction of the investigating police officer. The blood level of the alcohol was .205. At a pretrial hearing on appellant’s motion to suppress the blood sample, the issue was whether Section 322.261, Florida Statutes (1977) (the “implied consent law”) allows law enforcement authorities to take a blood sample from a person suspected of driving while under the influence of alcohol when that person expressly objects to the taking thereof. The trial judge denied the motion to suppress and at trial the blood sample and the testimony about it were features of the state’s case before the jury.
For the reasons fully set out when this precise issue was recently decided in thorough opinions by this court and our sister court, we hold the trial court was in error when it denied appellant’s motion to suppress the blood sample, and upon consideration of the record before us find that a reversal of appellant’s convictions is therefore necessary. McDonald v. State, 364 So. 2d 1241 (Fla. 2d DCA 1978); State v. Riggins, 348 So. 2d 1209 (Fla. 4th DCA 1977); cert. dism. 362 So. 2d 1056 (Fla.1978).
Reversed and remanded for further proceedings consistent with this opinion.
BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur. . Sentence was imposed only on the conviction of manslaughter by the operation of a motor vehicle while intoxicated. The trial judge correctly recognized that only one sentence can be imposed for the one homicide although the information charged two separate offenses. Phillips v. State, 289 So. 2d 769 (Fla. 2d DCA 1974). Causing the death of a person by the operation of a motor vehicle while intoxicated is a specific category of manslaughter. § 860.01(2), Fla. Stat. (1977). Vehicular homicide otherwise than from intoxication has been removed by the legislature from the manslaughter statute and made an offense subject to a lesser penalty than that imposed for manslaughter. §§ 782.07 and 782.071, Fla.Stat. (1977); State v. Young, 357 So. 2d 416 (Fla. 2d DCA 1978).
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Houser v. State, 474 So. 2d 1193 (Fla. 1985)…Stricklen v. State, 332 So. 2d 119 (Fla. 1st DCA 1976); Phillips v. State, 289 So. 2d 769 (Fla. 2d DCA 1974). And the rule has been utilized in the express situation now before us. Ubelis v. State, 384 So. 2d 1294 (Fla. 2d DCA 1980); Brown v. State, 371 So. 2d 161 (Fla. 2d DCA 1979), affirmed, 386 So. 2d 549 (Fla.1980).5 We therefore answer the second certified question in the negative: an offender may not be punished for both DWI manslaughter and vehicular homicide. THIRD QUESTION AND CONCLUSION The third…
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Kurtz v. State, 564 So. 2d 519 (Fla. 2d DCA 1990)…le negligence. . Brown v. State, 452 So. 2d 605 (Fla. 2d DCA 1984); Platt v. State, 449 So. 2d 891 (Fla. 2d DCA 1984); Johnson v. State, 419 So. 2d 1144 (Fla. 2d [*523] DCA 1982); Ubelis v. State, 384 So. 2d 1294 (Fla. 2d DCA 1980); Brown v. State, 371 So. 2d 161 (Fla. 2d DCA 1979), aff’d, 386 So. 2d 549 (Fla. 1980); Miller v. State, 339 So. 2d 1129 (Fla. 2d DCA 1976); Phillips v. State, 289 So. 2d 769 (Fla. 2d DCA 1974); Vela v. State, 450 So. 2d 305 (Fla. 5th DCA 1984); Goss v. State, 398 So. 2d 998 (Fla.…
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Gordon v. State, 457 So. 2d 1095 (Fla. 5th DCA 1984)…and first degree murder); Ubelis v. State, 384 So. 2d 1294 (Fla. 2d DCA 1980) (DWI manslaughter and vehicular homicide); Thomas v. State, 380 So. 2d 1299 (Fla. 4th DCA 1980) (DWI manslaughter and manslaughter by culpable negligence); Brown v. State, 371 So. 2d 161 (Fla. 2d DCA 1979) (DWI manslaughter and vehicular homicide); Miller v. State, 339 So. 2d 1129 (Fla. 2d DCA 1976) (DWI manslaughter and manslaughter by culpable negligence); Stridden v. State, 332 So. 2d 119 (Fla. 1st DCA 1976) (DWI manslaughter and…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Phillips v. State, 289 So. 2d 769 (Fla. 2d DCA 1974)
- State v. Riggins, 348 So. 2d 1209 (Fla. 4th DCA 1977)
- N. Am. Mortg. Invs. v. Cape SAN Blas Joint Venture, 357 So. 2d 416 (Fla. 1st DCA 1977)
- State v. Young, 357 So. 2d 416 (Fla. 2d DCA 1978)
- McDONALD v. State, 364 So. 2d 1241 (Fla. 2d DCA 1978)