STATE
v.
BIERBAUM
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In this suppression motion, the court determined whether blood test results obtained without arrest or statutory warning were admissible under Florida law. The court held that when a defendant is incapacitated due to injury, the statutory prerequisites for blood testing may be waived, and the blood test was properly administered.
The court held that when a defendant is incapacitated by injury and receiving emergency medical treatment, the statutory prerequisites for blood testing—arrest and warning of consequences—may be waived under section 322.261(1)(c). The state must show that compliance with statutory mandates would have interfered with medical treatment or been a useless gesture. Here, with the defendant bleeding, in pain, and under physician care, the statutory requirements were properly waived.
[1] A blood test administered to a driver involved in a motor vehicle accident may be taken without a prior arrest or advisement of consequences if the driver is incapable of…
[2] The state bears the burden of proving that advising a driver of the consequences of refusing a blood test would have interfered with medical treatment or been a useless g…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We hold, therefore, that it is unnecessary either under the Federal or Florida Constitutions or under Florida Statutes 322.261 to place a person under arrest prior to administering a blood test as authorized under subsection 1 (b) [now subsection 1(c)] of the Act.”
Establishes that arrest is not a constitutional prerequisite for blood testing under section 322.261
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn July 4, 1977, Gary Bierbaum was involved in a single-car collision in Boca Raton. He was taken to the emergency room at Boca Raton Community Hospit…
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This cause came on before the court upon the defendant’s motion to supress certain blood analysis results. From the testimony presented at the hearing on the motion, the court makes the following —
Findings of fact
On July 4, 1977, at 11:39 P.M., Gary Bierbaum was involved in a one-car collision on Camino Real in Boca Raton. After the collision he was taken to the emergency room at the Boca Raton Community Hospital. Upon arrival, he was conscious, was bleeding about the face and complained of being in great pain.
After investigating the scene of the collision, Officer Despres of the Boca Raton Police Department went to the hospital to interview the defendant. He saw and apparently talked with the defendant. The officer noted that the defendant smelled of alcohol. Then, without placing Mr. Bierbaum under arrest or issuing him a traffic citation, and without telling him that his failure to submit to a blood test would result in the suspension of his driving privileges for a period of three months, Officer Despres authorized a technician to draw a blood sample. The defendant complied without comment. He was released from the hospital within two or three hours after admission.
From these findings, the court reaches the following —
Conclusions of law
Under subsection 1 (a) of Florida Statute 322.261, there are two legal prerequisites for the administration of a test for alcohol in the bloodstream — (1) the test must be incident to a lawful arrest, and (2) the person must be told that his failure to submit to the test will result in the suspension of his privilege to operate a motor vehicle for a period of three months. Both prerequisites are waived, however, if the person falls into the category described in subsection 1(c) of the statute. If he “. . . is incapable of refusal by reason of unconsciousness or other mental or physical condition ...,” he need not be placed under arrest and he need not be told of the consequences of a refusal. This is consistent with the principle that the law does not require a useless gesture. In discussing this very subsection of the statute, the Florida Supreme Court in State v. Mitchell, 245 So.2d 618, 623 (Fla. 1971), said —
“We hold, therefore, that it is unnecessary either under the Federal or Florida Constitutions or under Florida Statutes 322.261 to place a person under arrest prior to administering *165a blood test as authorized under subsection 1 (b) [now subsection 1(c)] of the Act.”
The Attorney General in Opinion 073-361, set forth the law as follows —
“Since 322.261 (1) (b) [which is now subsection (l)(c)] does not require that the person be arrested prior to the administration of a blood test, and since there are no constitutional barriers in this regard, I must conclude that a blood test may be administered to a person who is incapacitated and who is admitted to a hospital as a result of his involvement as a driver in a motor vehicle accident.. .”
The question which this case presents is what degree of incapacity must be proven before there can be a change in focus from subsection 1(a) to subsection 1(c). The mere fact that a person is taken to a hospital does not settle the question. See, e.g., State v. Riggins, ......... So.2d ........ (Fla. 4th DCA slip op. filed July 22, 1977). Rather, the state has the burden of showing that it would have interfered with medical treatment or would have been a useless gesture to comply with the statutory mandate and advise the person of the consequences of a refusal to take the test.
In the case at bar, with the defendent bleeding about the face, complaining of great pain, and being attended by physicians in the emergency room, the court concludes that the state has met its burden and that the case is to be measured by the standards of 1 (c).
Accordingly, it is ordered and adjudged that the defendant’s motion is denied.