CARMEN ALLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that statements made by the appellant concerning her drinking and refusal of a blood alcohol test were privileged under Fla. Stat. § 316.066(4) and should have been suppressed.
Appellant was involved in a pedestrian accident and made incriminating statements about her drinking and refusal to take a blood alcohol test to an in…
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GARRETT, Judge.
Appellant’s motion for clarification is granted in part. Appellee’s motion for rehearing is granted. We substitute the following opinion:
Appellant appeals her conviction and sentence for Driving Under the Influence Manslaughter. At the scene of the automobile pedestrian accident, after the investigating officer asked appellant to submit to a blood alcohol test, appellant gave incriminating statements concerning her drinking prior to the accident and her reasons for refusing to take the test.1 The trial judge refused to suppress the statements and allowed them to be heard by the jury. We affirm as to all issues2 but one. We address whether appellant’s statements at the scene and later at a medical clinic were given during the accident report phase of the investigation and, therefore, privileged and statutorily inadmissible. § 316.066(4), Fla.Stats. (1987).
We conclude the trial judge committed reversible error by admitting appellant’s privileged statements. Yost v. State, 542 So. 2d 419 (Fla. 4th DCA 1989). There is substantial competent evidence to conclude the accident investigation phase continued until the officer gave appellant her Miranda warnings at the medical clinic. Brackin v. Boles, 452 So. 2d 540, 543 (Fla.1984). Appellant made the questioned statements during the accident phase of the investigation.
Unlike the defendant in Kornegay v. State, 520 So. 2d 681, 683 (Fla. 1st DCA 1988), appellant offered no testimony during the trial which rendered the admission of the privileged statements harmless error. Considering the content and the inflammatory nature of the privileged statements, we cannot conclude there is no reasonable possibility that the error contributed to appellant’s conviction. State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.1986).
Accordingly, we reverse appellant’s conviction, vacate her sentence, and remand for a new trial.
DELL and GUNTHER, JJ., concur. . Appellant stated she had been drinking all night, all that day, and the night before, and she knew a blood test would '‘nail” her. . We disapprove of the blood alcohol presumption instruction given at trial. Rolle v. State, 528 So. 2d 1208 (Fla. 4th DCA 1988).
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Norstrom v. State, 587 So. 2d 1148 (Fla. 4th DCA 1991)…of the investigating officer that appellant advised him at the scene that he had consumed six or seven beers. Admitting such testimony violated section 316.066(4). See also Thomas v. Gottlieb, 520 So. 2d 622 (Fla. 4th DCA 1988). In Alley v. State, 553 So. 2d 354 (Fla. 4th DCA 1989), rev. denied, 563 So. 2d 634 (Fla.1990), appellant appealed her conviction for driving under the influence-manslaughter. At the scene of the accident, appellant stated that she had been drinking. This court addressed whether appe…
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State v. Riley, 617 So. 2d 340 (Fla. 1st DCA 1993)…This court interpreted Brackin as eliminating the distinction between statements made during accident investigations and statements made during a criminal investigation. Kornegay v. State, 520 So. 2d 681 (Fla. 1st DCA 1988). But see Alley v. State, 553 So. 2d 354 (Fla. 4th DCA 1989), rev. denied, 563 So. 2d 634 (Fla.1990), and West v. State, 553 So. 2d 254, 256 (Fla. 4th DCA 1989), disapproved, State v. Norstrom, 613 So. 2d 437 (Fla.1993). The legislature amended section 316.066(4) in 1991 by adding the und…
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Alley v. State, 619 So. 2d 1013 (Fla. 4th DCA 1993)…riving under the influence, which resulted in manslaughter, as well as the trial court’s denial of a motion for new trial. The trial court entered these orders after appellant was retried on remand pursuant to this court’s mandate in Alley v. State, 553 So. 2d 354 (Fla. 4th DCA 1989). I would affirm the trial court in every respect, and feel compelled to address the majority’s reversal on appellant’s fifth point on appeal. Appellant argues and the majority agrees that the trial court erred when it denied her…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Brackin v. Boles, 452 So. 2d 540 (Fla. 1984)
- Carlton Rolle v. State, 528 So. 2d 1208 (Fla. 4th DCA 1988)
- Yost v. State, 542 So. 2d 419 (Fla. 4th DCA 1989)
- Kornegay v. State, 520 So. 2d 681 (Fla. 1st DCA 1988)