STATE_V._JACOBS_ _2020 AP 1 A O_ _12.14.2020 COMPRESSED_(1)

Before ADAMS, CRANER, and LEBLANC. J.J.

PER CURIAM.

AMENDEDI ORD

REVERS

G TRIAL COURT

Appellant, the State of Florida, appeals the order Granting Defendant,s Motion to Suppress the results of Appellee/Defendant's blood test entered on January 13, 2020. This court has jurisdiction under section 26.012(l), Florida Statutes and Ftorida Rule of Appellate procedure e.030(c)(1)(B). I This Court entered its initial Order on December I, 2020, and it made the following statement within its analysis on page nine: "Regarding the first issue on appeal, this Coun finds that the trial coui ened in finding that a breath or urine test was impractical or impossible." This order corrects the typographical enor in the aforemeitioned sentence to read, "Regarding the first issue on appeal, this Court finds that th; trial'court erred in finding that a breath or urine test.{as-no, impractical or impossible." (Emphasis added.) The ruling contained in this order 6therwise remains undistulbed. Filing # 118170811 E-Filed 12/14/2020 03:46:37 The officer also noticed that Appellee had bloodshot and glassy eyes, slurred speech, and the odor of alcohol on his breath. officer Liebknecht read Appellee Miranda2 rights, after which Appellee admitted to drinking a few Miller Light beers. 2 Miranda v. Arizonq,384 U.S. 436 (1966) Page 2 of 16 [*3] Hospital staff advised Officer Liebknecht that a head CT scan on Appellee had been ordered. The officer did not inquire how long it would take to complete the scan, nor how long it would be until Appellee was released, but testified that he believed Appellee would not be released any time soon. Officer Liebknecht also did not request that Appellee perform field sobriety exercises, nor did he request that Appellee submit to a breath or urine test. Officer Liebknecht then read Appellee the first four lines from an agency-issued Implied Consent card to obtain a blood draw. He could not recall the exact words from the card. Appellee consented to the blood draw. Because Appellee consented, the officer read no further, per the card's instructions. Officer Liebknecht then requested hospital staff to conduct a blood draw from an agencyissued blood kit provided to the officer by his supervisor. The officer watched while an unidentified hospital staff member, whom he believed to be a registered nurse, took a blood sample from Appellee using only the items from the kit. Officer Liebknecht could not identify the name of the individual nor his or her training or experience. He could only recall that she had a hospital nametag with a badge bearing the letters, ,,RN.,, Arguments on Appeal First, Appellant argues that the lower court's finding that a urine or breath test was not impractical or impossible was not supported by the facts introduced at the hearing and case law. Appellant indicates that because Officer Liebknecht only suspected that Appellee was under the influence of alcohol, a urine test was not practical or relevant. Appellant further asserts that absolute certainty ofhow long a defendant is going to be in the hospital or what treatrnent he is going to receive is not a requirement imposed by most courts. Appellant contends testimony that a defendant is merely going to need some kind of additional Page 3 of l6 [*4] treatmenl before being discharged has been found to be enough to show a breath or urine test was impractical or impossible. In addition, Appellant claims pursuant to Lemell v. State,¹⁵ Weekty Supp. 79la (Fla. lTth cir. ct. May 19, 2008), courts allow reasonable assumptions to be made by the officer regarding the length of time a defendant is going to be in the hospital. Appellant argues that if a breath or urine test is skipped for mere convenience, then courts will not find them to be impractical or impossible, as found in Chu v. State,52l So. 2d 330 (Fla. 4th DCA lggg). Appellant argues that in the present case, there is evidence from the testimony of Officer Liebknecht to establish that a breath test would be impractical or impossible. First, there was testimony regarding the severity of Appellee's injuries, including that he had extensive bleeding from his head and was taken in an ambulance to the hospital. Once Appellee arrived at the hospital, he was placed in a private room. Appellant asserts that Appellee's location in a private hospital room not only shows that a significant passage of time between when Appellee arrived at the hospital and when the officer arrived, but it also shows that Appellee was going to receive more than just cursory treatment. Appellant contends that when Officer Liebknecht was at the hospital, he leamed that there was at least one additional test Appellee was going to receive, which was a cr scan, and he also noticed one of Appellee's legs was swollen. Appellee needed additional treatment before he could be released, and the officer testified that based on his experience and the hospital failing to provide a timeline, Appellee was not going to be discharged any time soon. Appellant argues that if it reasonably appears from the circumstances that the defendant is likely to be at the medical facility for some time, and there is no practical way to take a breath test at the hospital, a blood sample may be secured because a breath test is impractical or impossible. Appellant asserts that in the present case, the officer also testified that he had never heard Page 4 of l6 [*5] of a hospital with an Intoxilyzer and he did not have one with him, and moreover, there was no readily available Intoxilyzer or a certified technician. Appellant further contends that the blood test in the present case was not done for mere convenience and was not done without any knowledge of Appellee's condition. Appellant concludes that based on the totality of the circumstances, including Appellee's swollen leg, his head injury, the lack ofan Intoxilyzer, and the need for additional treatment with no timeframe of when treatment would begin, the trial court's finding that there were no facts to support Officer Liebknecht's conclusion that a breath test was impractical or impossible was not supported by competent, substantial evidence and therefore should be overtumed. In contrast, Appellee argues that the trial court's finding that a breath or urine test was not impractical or impossible was supported by competent, substantial evidence. Appelee also disagrees with Appellant's assertion that a urine test is only applicable if a defendant is suspected of using controlled substances, and maintains that such an assertion is no1 supported by section 316.1932(1)(c), Florida Statutes (2019), or case law. Appellee asserts that Officer Liebknecht did not have professional knowledge regarding how long a cr scan would take, that he only relied on his personal knowledge in coming to the conclusion that a cT scan would take "awhile," and that he failed to inquire as to how long the cT scan would take. Appellee also maintains that he was awake, alert, answering Officer Liebknecht's questions, was ambulatory, and was not restrained in the hospital room. Appellee had a leg that was a "little swollen." Appellee also relies on.Frazier v. state,530 so. 2d 9g6 (Fla. I st DCA lggg), for the proposition that a breath test administered five hours after the offense was done in a reasonable time. Appellee further contends that Appellant failed to show that an Intoxilyzer was not present Page 5 of l6 [*6] at the hospital. He argues that Officer Liebknecht did not inquire whether there was an Intoxilyzer, but instead "practiced willful blindness as to whether it was possible to collect a sample at the hospital . . . [and] by not inquiring into the Appellee's . . . treatment and release status." Appellee maintains that Appellant failed to present sufficient evidence that a breath or urine test was impractical or impossible. Thus, he argues, the trial court's finding that a breath or urine test was not impractical or impossible should be affirmed. Appellant's next argument on appeal is that the trial court applied the wrong legal standard when it held that for a blood test to be considered voluntary, the defendant must be told that it is offered as an altemative to a breath or urine test. Appellant claims that if a defendant voluntarily consents to the blood test, "then the blood test falls wholly outside the scope of implied consent law." Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992). Appellant asserts that the Fifth District Court of Appeal derermined in State v. Murray,51 So. 3d 593, 596 (Fla' 5th DCA 201 l), that there is no requirement that a defendant be told a blood test is an altemative to a breath or urine test in order for the defendant's consent to be knowingly and voluntarily made. Moreover, Appellant indicates that although Officer Liebknecht testified that he read Appellee the "implied consent," it is clear that what he meant was that he read from his agency issued "implied consent card." Based on officer Liebknecht,s testimony, the card has two parts, with directions to stop reading after the first few lines and only to read part two if the response to the first part is a "no." Officer Liebknecht also testified that the second part contains the penalties applicable to implied consent and the first part is a general request to submit to a blood test. Appellant claims that the first part therefore falls under voluntary consent. Appellant argues that if Appellee consents after reading part one ofthe card, then that consent would fall under voluntarv Page 6 of 16 [*7] consent, even though the officer was reading from an implied consent card, because no penalties were read to Appellee. Appellant maintains courts look to the totality of the circumstances, rather than one factor to determine if a defendant's consent is made knowingly and voluntarily, and that Appellee voluntarily consented to the blood test based on the following factors: before Officer Liebknecht began his criminal investigation, he read Appellee Miranda rights; testimony from the officer does not indicate a lack of voluntariness; he was the only officer in the room when he made the request; Appellee was not told he was under arrest; Appellee was not restrained; he made the request in a calm manner; he did not threaten Appellee or raise his voice; and Appellee consented, knowing his rights. Furthermore, Appellant points out that Appetlee was never told ofany consequences for refusing to submit to a blood test. For instance, he was never told that his license would be suspended or that his refusal could be used as evidence of guilt in court. Based on the testimony, Appellant argues, there is no indication that Appellee's consent was not freely and voluntarily made Additionally, Appellant asserts that the law does not support the trial court,s finding that the officer's failure to read the consequences made Appellee's consent involuntary. Appellant further argues that the trial court's reliance on Chu is misplaced because there is no requirement that Appellee be told the blood test is an altemative to a breath or urine test for the consent to be voluntary. Thus, Appellant maintains, Appellee voluntarily consented to the blood draw, and the court's application ofthe law to the facts in this case was clear error and should be overtumed. However, Appellee maintains the trial court correctly found that his consent was not knowingly and voluntarily made. He argues that pursuant to Cfrar, consent is deemed knowingly and voluntarily made if Appellee was fully informed that the implied consent requires submission Page 7 of 16 [*8] only to a breath or a urine test and the blood test is offered as an altemative. Appellee asserts that whether consent is knowingly or voluntarily made is based on the totality of the circumstances such as the time and place of the encounter; number of officers present; the officer's words or actions; age and matudty of Appellee; Appellee's prior offenses; Appellee's execution ofa written consent form; and whether Appellee was informed ofhis right to refuse consent; and the lenglh of time of the intenogation. He argues that Officer Liebknecht did not inquire for voluntary consent. Rather, Appellee states that the officer read from an implied consent card and did not read any administrative or criminal penalties. Nor did the officer tell Appellee that the blood test was voluntary and an altemative to a breath or urine test. Because Officer Liebknecht could not remember the exact wording ofthe card he read from, Appellee assurnes that the card stated, ,,Under Florida Law you are required to submit to a blood test to determine the alcohol content of your btood. Will you submit to the tesr?" based on state v. Iaco,906 So. 2d l15l (Fla. 4th DCA 2005). Appellee contends that in the instant case, even ifthe penalties were omitted, the officer was reading implied consent and invoked the Implied consent law, which required the officer to inform him that a blood test was in the alternative to a breath or urine test. He also indicates that Officer Liebknecht failed to obtain written consent from him. Appellee asserts that the trial court considered the totality of the circumstances to find that voluntary consent was not given, including that he was not fully informed about the blood draw being under voluntary consent as opposed to implied consent; the fact that the implied consent card was not introduced into evidence; and that the officer could not recall exactly what words were used to request the blood sample or whether he read consequences for refusing to submit a blood sample. Therefore, he argues that the court's findings were supported by competent, substantial evidence, and the order suppressing the blood test results Page 8 of 16 [*9] should be affirmed. Standard of Review Upon appellate review, "[a] trial court's ruling on a motion to suppress is presumed to be correct." Brown v. state, 719 so.2d 1243, 1245 (Fla.5th DCA 1998). The trial courr's findings of fact must be supported by competent, substantial evidence. state v. Liles,I 9l So. 3d 494, 4g6 (Fla. 5th DCA 2016). This Court defers to the trial court's findings of fact, unless they are clearly enoneous (Pantin v. state, 872 So. 2d 1000, 1002 (Fla. 4th DCA 2005)), and revi ews de noyo the trial court's application of law to the facts. Liles, l9l So. 3d at 4g6 (citing Delhall v. state, 95 So. 3d 134, ls0 (FIa.2012)). Analysis Regarding the first issue on appeal, this Court finds that the trial court erred in finding that a breath or urine test was not impractical or impossible. Section 316.1932(1)(c), Florida Statutes, otherwise known as the "Implied Consent Statute,' reads: Any person who accepts the privilege extended by the laws ofthis 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 ofthe blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this seclion if there is reasonable couse to believe the person was driving or in actual physical control ofa motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and t/re person appears for treotment at a hospital, clinic, or other medical facllity and the administration ofa breath or urine test is impracticol or impossible. (emphasis added.) The Fifth District Court of Appeal has held that the impractical or impossible requirement for a breath or urine test means that a "breath or urine test would have been statutorily permissible Page 9 of 16 [*10] . . . but for the inability to administer these tests." ,Sr4 te v. Hilton,498 So. 2d 698, 7OO (Fla. 5th DCA 1986). Florida Courts have typically held that when a defendant is transported to a hospital for injuries, it is impractical or impossible for an officer to request a breath or urine test. For example, in Maingot v. state,¹⁵ Fla. L. weekly Supp. 425a (Fla. 9th Jud. cir. cr. Jan.¹⁵, 200g), this coun, acting in its appellate capacity, determined that a hearing officer had sufficient facts to find that a breath or urine test was impractical when an injured defendant was transported to the hospital, read his Mranda ights, and admitted to drinking alcohol. see also state v. Renwick, T Fla. L. weekly Supp. 406a (Fla. llth Jud. cir. ct. Apr. 4,2000) (holding that the breath rest was deemed impractical due to the extent ofthe defendant's possible injuries from a crash and because it was recommended that the defendant be transported to the hospital, and finding that law enforcement officers should err on the side of caution, deferring to medical personnel in determining the practicality ofobtaining a breath test); stocker v. state, l0FIa. weekly supp. 4g7a(Fta.19th Jud. Cir. Ct. Apr. 21,2003) (holding that a breath or urine test was impractical when the defendant was transported to the hospital for treatment, the officer believed the defendant was driving under the influence ofalcohol, the officer testified that a urine test was used primarily for drugs, and neither the hospital nor the officer possessed an Intoxilyzer machine); Murphy v. Florida DHSMV,²⁴ L.weeklySupp.T82a(Fla.6thJud.Cir.ct.Dec.6,2015)(findingthatabreathorurinetesrwas impractical or impossible due to the delay of time from the crash and the fact that the trooper did not know if the defendant would be admitted to a hospital). In the present case, Appellant presented evidence that a breath or urine test would have been impractical. Testimony revealed the following facts: Appellee was driving his vehicle at the time of the crash; he emitted the odor of alcohol from his breath at the crash site; a six pack of Page l0 of I 6 [*11] beer, including an empty bottle, was recovered during the search of his vehicle; and he was transported to the hospital. These facts are analogous to those present in other cases where courts have determined that it would be impractical to conduct a breath or urine test. The trial court found that Appellant established through competent, substantial evidence that Offrcer Libeknecht had reasonable cause to believe that Defendant was driving a motor vehicle while under the influence of alcohol or controlled substances. Additionatty, at the hospital, Officer Liebknecht noticed Appellee had bloodshot and glassy eyes, slurred speech, and emitted an odor of alcohol on his breath. The trial court found it was undisputed that Appellee appeared for treatment at a hospital for injuries sustained in the crash. Record evidence also showed that the officer in the instant case knew Appellee would be receiving a cr scan, was bleeding profusely from his head, with btood "all over" his shirt, and had a swollen leg. This is enough information for the officer to reasonably conclude that transferring Appellee to a breath test center would not occur soon. The trial court disregarded the officer's testimony that he did not have a breath test with him, nor had he ever known ofa hospital to have a breath test, and that he typically takes suspects to a DUI center. To require a law enforcement officer to inquire further into Appellee's specific medical treatment, diagnosis, or release status when he already had information that reasonably led him to believe Appellee would be held further that night is not supported by the statute or case law. These facts support the officer's conclusion that a breath test would have been impractical. Although the trial court also overlooked this fact, Officer Liebknecht testified that a urine test would not have accurately detected the blood alcohol content in Appellee,s system, so he did not request one. Thus, a urine test was impractical. Furthermore, even if a urine sample would have accurately measured Appellee's blood alcohol content, it was reasonable for the officer to Page 1l of 16 [*12] conclude that it would have been impractical for Appellee with a head injury and a swollen leg to walk to a bathroom in order to submit a urine sample. Contrary to the trial court's findings, we find Appetlant met the criteria for implied consent under section 316.1932(l)(c), and we therefore must reverse. Regarding the second issue raised on appeal, this Court finds that the trial court erred in holding that Officer Liebknecht was required to inform Appetlee ofthe consequences for failing to provide a blood sample and that the blood sample was in the altemative to a breath or urine sample. Appellee relies on laco for the proposition that because Officer Liebknecht read from an implied consent card, the Implied Consent statute was invoked. We find that reliance misplaced. The court in lcco considered two cases where both defendants voluntarily consented to breath tests after being read implied consent statutes where the law enforcement officers omitted penalties pursuant to agency policies. 906 So. 2d at I 152-53. The laco court held that "administrative and criminal consequences apply only d the defendant refuses the breathalyze r tesr. wen the defendant consents to the test, those consequences do nor apply. Thns, failing to be advised of them does not warrant suppressing the test results." Id. at ll53 (emphasis added). Iaco involved a breath test and its ruling does not support Appellee's argument. see also state v. Dubiel, g5g so. 2d 486, 488 (Fla. 4th DCA 2007) (finding that where the officer read the defendant Miranda rights, requested a blood sample, and did not advise the defendant of the consequences for failing to consent, the defendant consented, and the court held that failing to advise ofthe consequences of refusing a blood test does not warrant suppression of the results in a criminal proceeding). Appellee also relies on Cfta. However, the facts in the instant case are also distinguishabte from Chu, which held that, Page 12 of 16 [*13] [C]ircumstances may occur where it is more convenient for a person to submit to a blood test rather than a breath or urine tesl. [Jnder such circumstonces we see no reason to exclude a voluntary blood test provided the person has been fully informed that the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an altemative. The key to admissibility is that the consent must be knowingly and voluntarily made and not as the result of the acquiescence to lawful authority. 521 So. 2d at 332. (Emphasis added.) ln Chu, the offrcer requested a blood draw at the scene ofthe crash because the paramedics were present and the officer thought it would be easier to test the defendant. Id. at33l. There was no question that the defendant was not going to be transported to the hospital because there were no injuries. Id In the instant case, Appellant presented evidence that a blood test was not merely more convenient. Rather, due to Appellee's injuries and firther treatment at the hospital, that the officer did not have a breath test with him, nor was he aware ofany hospital having breath tests, a breath or urine test would have been impractical or impossible. In addition, there was no record evidence to suggest that Appellee's consent was coerced, forced, or based upon misinformation from the officer. Appellant presented evidence that Appellee's consent was voluntary. officer Liebknecht was the only officer in the room, and he did not yell, threaten, or coerce Appellee. In addition, the officer did not tell Appellee that if he did not submit to a blood test, his license would be suspended. The officer did not read any penalties to Appellee. The record testimony reflects that the officer requested Appellee to submit to a blood draw and Appellee consented. Had Officer Liebknecht informed Appellee of consequences for failing to provide a blood sample, it would have affected the voluntary nature ofAppellee's consent. see state v. slaney,653 so.2d 422,430 (Fla. 3d DCA 1995) ("[W]here, as here, a DUI arrestee consents to a blood withdrawal after being improperly advised that he will lose his driver's license if he fails to give such consent, the ensuing Page l3 of 16 [*14] consent is involuntary in nature because it was induced by a misrepresentation."). Thus, the facts of Chu and its holding are inapplicable. Appellant relies on Mutay ard its holding that because the defendants consented to the blood draw, the trooper was not required to inform them that the blood test was in the altemative to a breath or a urine sample. 5 I So. 3d at 596. However, Murray's facts are distinguishable from the instant case. ln Murray,lhe troopers determined that they lacked probable cause to arrest either defendant for DUI. Id. ar 594. Nevertheless, the troopers asked the defendants to voluntarily provide blood samples. /d rhe defendants consented although no implied wamings were given. Id The cou( held that under these facts, section 316.1932(1)(c) was not implicated because the test was done outside the scope of the implied consent law. Id. at 595. Therefore, the court found that the consent was voluntary and the results should not have been suppressed . Id. at 596. Although Murray's facts and holding are inapposite to the present case, it does not affect our ruling. rn state v. Meyers,261 So. 3d 573, 574 (Fla.4th DCA 201s), a law enforcement officer observed the defendant drive erratically and crash into a median. 1d The officer apprehended the defendant after he fled on fool. Id. The police report noted that the defendant was slurring his words, had red, bloodshot, watery eyes, and his breath smelled ofalcohol. Zl rhe defendant was then transported to the hospital because ofinjuries he sustained while fleeing on foot. Id. Once the officer arrived at the hospital, he immediately requested a blood test, without ascertaining how long the defendant would be hospitalized, and without informing the defendant that the implied consent law only requires submission to a breath or a urine test and that a blood test is offered as an altemative. -Id The defendant voluntarily consented. Id The court held that because the defendant consented to the blood test and nothing in the record indicated that his consent was involuntary, Florida's implied consent law did not apply. ld. It ruled that the trial court erred in Page 14 of 16 [*15] Page l5 of 16 suppressing the blood test results for failure to comply \Mith the provisions ofthe implied consent law. Id. at 574-7 5. The court noted that the Florida Supreme Court has explained that ifa defendant expressly consents to a blood test, "then the blood test falls wholly outside the scope ofthe implied consent law." Id. at 574 (quoting Robertson v. State,604 So. 2d 783, 790 (Fla. 1992)). The facts in the instant case are analogous lo Meyers. J:ust as in Meyers, Officer Liebknecht did not inquire into how long Appellee would be hospitalized and did not advise Appellee that the blood test was in the altemative to a breath or urine test. 1d Nonetheless, the blood results should have been admitted because Appellee voluntarily consented, as the defendant did in Meyers. Id. Case law does not support the trial court's finding that Officer Liebknecht was required to inform Appellee of the consequences for failing to provide a blood sample and that a blood test was an altemative to a breath or urine sample. Therefore, this Court finds that the trial court erred in finding Appellee's consent was involuntary because the officer failed to advise Appellant on the consequences of refusing to submit to a blood test and that the blood test is offered as an altemative to a breath or urine test. The trial court's finding that Appellee's consent was neither voluntary, nor was it valid under the Implied Consent statute was not supported by competent, substantial evidence. Accordingly, we hold that the trial court erred in granting Appellee's Motion to Suppress. Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the "Order Granting Defendant's Motion to Suppress," dated January 13, 2020, is REVERSED AND

REMANDED.

No motions for rehearing will be considered. DONE AND ORDERXD in Chambers, at Orlando, Orange County, Florida, on this day of November, 2020. [*16] )o>o frl" t -40

GAIL

MS Presid ircuit Judge CRANER and LEBLANC, J.J., concur. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been fumished to: The Honorable Andrew Cameron, Orange County Judge, Orange County Courthouse,425 N. Orange Ave, Orlando, Florida 32801;Jerry Jenkins, Esq., 200 E. Robinson St., Suite 1140, Orlando, Florida 32801; and Merrilyn Elise Hoenemeyer, Assistant State Attorney, Appeals Unit, P.O. Box 1673, Orlando, Florida 32802-1673. on this i4 day of Novee*er;2020. \)',,a '.'loi- Judicial Assistant ^l Page 16 of 16 aak^-*