The Rap Sheet. Message from State Attorney Norm Wolfinger

Transcription

1 The Rap Sheet Legal News for Law Enforcement in Brevard and Seminole Counties State Attorney Norm Wolfinger June 2007 Editor, Assistant State Attorney Chris White Volume XXIV, Issue 1 Message from State Attorney Norm Wolfinger This edition of the Rap Sheet deals with legal issues that are frequently confronted by law enforcement officers on the street: Miranda at traffic stops and crash scenes and other DUI issues. I wish to thank Assistant State Attorneys Mary Ann Klein, Michelle Perlman, and Chris White for their collaboration in putting together this information for your review. I believe you will find the analysis informative and helpful as you go about your duties in removing the impaired driver from the roadways. It is because of your efforts that our streets are made safer for our friends and neighbors to travel. Traffic stops are inherently dangerous situations, and we thank you for your selfless service to the public. Be safe. Norm Wolfinger Miranda and the Crash Report Privilege The reading of Miranda 1 is required prior to custodial interrogation. As a general rule, a person is not in custody during the detention at roadside for brief questioning and performing roadside sobriety tasks. Custody is a more restrictive form of detention that requires a reasonable person to believe that his freedom is curtailed to the degree normally associated with formal arrest under the U.S. Supreme Court interpretations or Florida courts interpretations. 2 Although Miranda is generally not required before sobriety exercises are administered or before roadside questioning for DUI, there are some situations where Miranda is implicated. This article will review the implications of Miranda on the admissibility of Field Sobriety Exercises and a defendant s statements in a non-crash situation and also where a traffic crash has occurred. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 See, Berkermer v. McCarty, 468 US 420, 440(1984); Pennsylvania v. Muniz, 496 US, 482, (1990); Pennsylvania v. Bruder, 488 US 9, 11 (1988); Allred v. State, 622 So.2d 984, (Fla. 1995); State v. Burns, 661 So.2d 842, (Fla. 5th DCA 1995); and Taylor v. State, 648 So.2d 701 (Fla. 1994). 1

2 A. Non-Crash Situation In most driving-under-the influence cases, a defendant is stopped by the officer for a civil traffic violation initially or because the officer suspects the driver is sick, injured, or impaired based upon the driving pattern or other observations of the defendant driver. Subsequent to the stop the officer detects various clues which lead him to suspect the driver is impaired by alcohol. Based upon the officer s reasonable suspicion that the driver is impaired, the officer then administers roadside field sobriety exercises. There are often questions relating to alcohol consumption at the roadside as well. Subsequent to the administration of field sobriety exercises (FSEs), where probable cause is found to arrest for the DUI, the driver is then arrested and transported to the correctional facility for the breath test. The breath test and/or administration of FSEs again may be on video. In cases where no crash has occurred, the cases of Allred v. State, 622 So.2d 984 (Fla. 1993) and State v. Burns, 661 So.2d 842 (5th DCA 1995) provide instruction on the applicability of Miranda and the admission of evidence in DUI cases. As a general rule in a noncrash case, the following principles apply: 1. Roadside Questioning of the Defendant - In a routine traffic stop where there is no evidence that the defendant was subjected to restraint comparable to a formal arrest, a defendant s statements at roadside, even in response to police questioning, will be admissible. 2. Roadside FSEs - In a routine traffic stop where there is no evidence that the defendant was subjected to restraint comparable to a formal arrest, a defendant s incorrect recitation of the alphabet and his counting incorrectly during the roadside FSEs is admissible Answers To Questions After Arrest - The defendant s answers to incriminating questions after arrest will be inadmissible unless Miranda is read and waived by the defendant. (How much have you had to drink, where were you coming from, etc....) 4. FSEs After Arrest - The testimonial portion of any field sobriety exercises done after arrest, without benefit of Miranda, are generally admissible in their entirety if the testimonial portions are done correctly because the testimony (reciting alphabet or counting) is not incriminating if done correctly. Instead, the evidence is offered to show the defendant s manner of speech; e.g., slurred. However, if the testimonial portions are done incorrectly (defendant says ABCs out of order, leaves letters out, or counts wrong) after arrest without benefit of Miranda, then the results are inadmissible. Field sobriety exercises which do not require the defendant to orally count or recite something out loud would be considered non-testimonial and admissible regardless of Miranda. 5. Routine Booking Questions After Arrest - Routine booking questions such as name, address, height, weight, eye color, date of birth, and current age are generally admissible even after arrest in the absence of Miranda because these questions are not designed to illicit an incriminating response. 4 3 Burns citing Berkemer v. McCarty, 82 L.Ed. 2d 317 (1984) and Pennsylvania v. Bruder, 102 L.Ed. 2d 172 (1988). In Burns The stop lasted eleven minutes in duration, occurred in a public area and only one officer was involved 4 Allred citing Pennsylvania v. Muniz, 110 L.Ed. 2d 528 (1990). 2

3 B. Crash Situations 1. Admissibility of Field Sobriety Exercises In State v. Whelan, 728 So.2d 807 (3rd DCA 1999), the 3rd DCA addressed the effect of the crash report privilege and the failure to read Miranda on the admissibility of field sobriety exercises. Whelan recognized that purely physical roadside tasks such as the One-Leg Stand, Walk and Turn, Finger-to-Nose and HGN invoke non-testimonial conduct, and thus the defendant s performance is admissible even where Miranda was not read in a crash situation. However, where Miranda is not given in a crash situation, testimonial portions of any FSEs will not be admissible. Thus, a defendant s incorrect recitation of the alphabet will not be admissible. Correct recitation of the alphabet will, however, be admissible because the results are offered to show manner of speech (slurred) rather than improper cognitive thinking (that the letters are out of order or some were missed). If Miranda is read (and waived) following the completion of the crash investigation (where defendant is advised that the crash investigation is over, that the officer is now conducting a criminal investigation for DUI, and Miranda is then read), then all FSEs, including testimonial FSEs done incorrectly, should be admissible. 2. Admissibility of Defendant s Statements Florida Statute (4) provides that: (4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person s privilege against self-incrimination is not violated. 5 The results of breath, urine, and blood tests administered as provided in s or s are not confidential and shall be admissible into evidence in accordance with the provisions of s (2). 6 Crash reports made by persons involved in crashes shall not be used for commercial solicitation purposes; however, the use of a crash report for purposes of publication in a newspaper or other news periodical or a radio or television broadcast shall not be construed as commercial purpose. Florida Statute Section , which addresses a motorist s duty to give information and render aid, also provides in paragraph (3) that the statutory duty of a person to make a report or give information to a law enforcement officer making a written report relating to a crash shall 5 Laws 1991, c , 14, eff. July 1, 1991, in subsec. (4), inserted the third sentence. 6 Florida Statute (4) was amended in 1982 by Laws of Florida to add this sentence. 3

4 not be construed as extending to information which would violate the privilege of such person against self-incrimination. The purpose of the crash report privilege contained in Section (4) is to encourage people to make a true report of the crash in order to facilitate the ascertainment of the cause of crashes, thus furthering the state s ultimate goal of making the highways safer for all of society. 7 Florida Statute Section has been understood to prohibit the use of a defendant s statements given during a crash investigation if no Miranda is given first or even if Miranda is given and waived, if the defendant is advised that he must respond to questions concerning the crash. 8 However, where a driver makes a spontaneous statement, immediately following a crash, the statement may be admissible since the driver did not make the statement for the purpose of complying with the duty to furnish a crash report. 9 Additionally, drivers who have a crash and then leave the scene are generally not entitled to the confidentiality privilege of Section (4), F.S. 10 The Crash Report Privilege applies to prohibit the person s statements from being admitted in any civil or criminal trial and in administrative hearings such as license suspension hearings conducted under Section , Florida Statutes. 11 Although earlier cases included noncommunicative evidence under the crash report privilege, this was changed by an amendment to the statute in The cases of Brackin v. Boles, 452 So.2d 540 (Fla.1984), State v. Edwards, 463 So.2d 551 (Fla. 1985); and most recently, State v. Cino, 931 So.2d 164 (Fla. 5th DCA 2006) rev. denied 941 So.2d 367 (Fla. 2006) made clear that non-communicative evidence is not made confidential by Section (4). Non-communicative evidence includes, for example; tangible evidence collected or observed by the investigating officer, the location of the crash, location of the vehicles, skidmarks, damage to the vehicles, observations of the defendant s impairment, the odor of alcohol detected, the defendant s appearance such as bloodshot eyes, his performance on field sobriety exercises, and the results of physical tests. This is true, even if the evidence was observed and obtained during the crash investigation. The defendant s statements given during the crash investigation phase to the officer or the other driver about the crash will not be admissible at trial against the defendant. Thus, law enforcement, after completing their crash investigation must then advise the defendant that a criminal investigation is now taking place and must also advise the defendant of Miranda in order for the statements given during the criminal investigation to be admissible. The officer simply telling the defendant he is changing hats, without Miranda, is not sufficient. 12 Some defendants have continued to argue that observations of impairment of the defendant that the officer makes during the crash investigation should be excluded from trial as well as the probable cause determination for arrest. Defense arguments have also been made contending that the crash report privilege excludes the officer from testifying about statements made by non- 7 Department of Highway Safety and Motor Vehicles v. Corbin, 527 So.2d 868 (1 st DCA 1988). 8 See State v. Marshall, 695 So.2d 686 (Fl. 1997); Vedner v. State, 849 So.2d 1207 (5th DCA 2003) rev. denied 861 So.2d See State v. Marshall, 695 So.2d 719 (3rd DCA 1996); Perez v. State, 630 So.2d 1231 (2nd DCA 1994); State v Derek Walker, AP (Circuit Court, 18th Judicial Circuit, Seminole County February 2, 2004). 10 See Cummings v. State, 780 So.2d 149 (2nd DCA 2000); State v. Hepburn, 460 So.2d 422 (Fla. 5th DCA 1984). 11 Department of Highway Safety and Motor Vehicles v. Perry, 702 So. 2d 294 (5th DCA, 1997). 12 State v. Norstrom, 613 So. 2d 4371 (Fla. 1993); State v. Marshall, 695 So. 2d 686 (Fla. 1997). 4

5 defendant persons during the crash investigation. Additionally, defendants have argued that the officer should be prohibited from considering the statements made by non-defendant drivers and vehicle occupants during the crash investigation phase in establishing reasonable suspicion for a DUI investigation or probable cause for arrest. 13 The Fifth District Court of Appeal, in State v. Cino, 931 So.2d 164 (Fla. 5th DCA 2006) rev. denied 941 So.2d 367 (Fla. 2006) addressed a variety of these issues. Cino made clear that neither the crash report privilege statute nor a defendant s privilege against self-incrimination prohibits the State from using the officer s observations of a defendant s physical appearance, general demeanor, slurred speech or breath scent, even when learned during the crash phase part of the investigation. Cino also made clear that a law enforcement officer may rely upon statements made to him during his traffic investigation by persons other than the defendant. 14 With regard to statements made by the defendant during the crash phase, Cino reiterated the rule that the defendant s crash report statements could not be introduced at trial. However, Cino extended the prohibition on the use of a defendant s statements to preclude their use by the officer in establishing his probable cause for arrest. Although Cino put certain issues to rest, 15 it also made clear that use of the defendant s statements in the probable cause for arrest determination is not permitted. Thus, it is good practice to follow the following guidelines in investigating a DUI crash case: 1. The first officer on the scene, after ascertaining the status of any physical injuries to the vehicle occupants, should speak to all third-party witnesses first (i.e., persons who witnessed the crash but were not a driver or passenger in the vehicle(s) involved in the crash.) 2. Next, the officer should speak to the person who appears to be the victim driver of the crash. 3. The officer should get as much crash information as possible from the thirdparty witnesses and victim driver. For example, how the crash occurred, can they identify the at-fault driver, signs or indications of impairment that were 13 See State v. Cino, Seminole County Court Case Number MM-A wherein the County Court agreed with the defendant and dismissed the information against the defendant. The decision was affirmed on appeal to the Circuit Court 18th Judicial Circuit case number 03-24AP. The case was reversed on appeal to the Fifth District Court of Appeal in State v. Cino, 931 So.2d 164 (Fla. 5th DCA 2006) rev. denied 941 So.2d 367 (Fla. 2006). 14 The 5th DCA in Cino stated, a law enforcement officer is not barred by Section (4) from testifying at a criminal trial regarding statements made to him during his traffic investigation by anyone other than the defendant on trial (because doing so would in no way violate the non-defendant declarant s privilege against self-incrimination). Cino at 168. The Court noted however that there may still be other evidentiary or constitutional bars to this type of testimony. See, e.g., Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Cino at 168 note 4. Although the Cino Court specifically addressed reliance upon the statements of the victim driver or third-party witnesses at trial it logically includes allowing reliance upon these statements for probable cause for arrest. Such was clearly the reading of Cino in State v. Stoller, 18th Judicial Circuit Court Case No AP (October 2006) decided subsequent to the 5th DCA opinion in Cino. 15 The State also argued that the statements made by a defendant during the criminal phase of the investigation were independent of the crash investigation and therefore could be relied upon in formulating probable cause and could be introduced at trial. The Fifth DCA did not squarely address this issue. Again, this is another reason to make your case as best you can from the information gathered from non-defendants and your observations rather than anything the defendant tells you even if the defendant s statements are reiterated during the criminal phase of the investigation. 5

6 observed by them of the at-fault driver. The officer should get written sworn statements from all third-party witnesses and the victim driver. 4. Only after the above has been completed should the officer attempt to question the person who appears to be the defendant at fault driver to obtain crash investigation information. After the crash investigation is complete, the officer MUST advise the defendant driver that he/she is changing hats from the crash investigation to a criminal investigation then advise the defendant driver of the Miranda warnings. If Miranda is waived, it is essential for the officer to ask the crash investigation questions all over again. Most importantly, the defendant should be re-asked whether he was the driver of the vehicle and whether he had consumed alcohol or controlled substances before driving. Remember, the defendant s statements made during the crash investigation phase will not be admissible into evidence at trial nor can the officer use the defendant s crash report phase statements to establish probable cause for the arrest. Thus, if a defendant s statements are needed at trial or to establish probable cause for arrest, they must be those obtained during the separate criminal investigation. 5. If a separate officer conducts the criminal investigation than the one who conducted the crash investigation, the crash investigation officer should convey everything he was told by the third-party witnesses and the victim driver, and his own observations of the defendant. Since the defendant s statements made during the crash phase cannot be used to establish probable cause anyway, the defendant s statements during the crash phase are immaterial and need not be conveyed. Handling a crash scene in the above-suggested manner will allow for a clearer assignment of probable cause separate from anything the defendant may have said that would be crash report privileged. In a single car crash where no witnesses are involved, emphasis on your observations of the defendant and the crash scene and strict adherence to the changing of hats followed by the reading of Miranda and covering all grounds for questioning during the criminal investigation with the defendant is even more imperative. Independent Blood Test at the Request of a Defendant Pursuant to Section (1)(f)(3), Florida Statutes, a DUI suspect who has submitted to the breath, blood or urine test administered at the request of the law enforcement officer is entitled to have, at his or her own expense, an independent blood test. This statute further provides that the law enforcement officer shall not interfere with the person s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person s own expense. 6

7 The case of Unruh v. State, 669 So.2d 242 (Fla. 1996), made clear that where the right to an independent blood test has effectively been denied by the actions or inactions of law enforcement in failing to render reasonable assistance in obtaining the test, suppression of the law enforcement test results is a proper sanction. Although a defendant s right to obtain an independent blood test is not triggered until he/she submits to the test offered by law enforcement, a recent decision by our Circuit Court sitting in its appellate capacity ruled that the request for the test may come prior to submission of the law enforcement test. In Wolfe v. State, Case No AP (Eighteenth Judicial Circuit, Brevard County, April 17, 2007), Wolfe testified at the suppression hearing that while at the police station he requested a blood test and was told that he could arrange for one after he submitted to the breath test. Wolfe submitted to the breath test but was never given the opportunity to arrange for the independent blood test. The breath test operator testified that he did not remember Wolfe asking for a blood test. Apparently, the arresting officer did not testify. The State had argued on appeal that the defendant should have to request the independent blood test after submitting to the law enforcement test. The Circuit Court in Wolfe ruled that (1)(f)3 contains no requirement concerning the timing of the request for a blood test. The right to arrange a blood test does not arise until a person has actually taken the breath test or other test selected by law enforcement However, once a person has made the request for a blood test and completed the test selected by the officer, the Court concludes that he does not need to repeat his request to trigger the officer s duty to assist him. As a result, if a DUI suspect asks about an independent blood test, even before he gives the breath, blood or urine test later administered, it is imperative that law enforcement clarify with the suspect his continued desire to have the independent blood test and proceed accordingly with providing the reasonable assistance to allow the suspect to make the needed arrangements. Communication between the arresting officer, other law enforcement officers who come into contact with the suspect, and the breath test operator is important to make sure whether or not the suspect ever mentioned the words independent blood test. We urge the arresting officer to document in their reports one way or the other whether an independent test was requested or mentioned and convey this information to the breath test operator. Further, all action taken to accommodate the defendant s request must also be documented in the officer s report. 7

8 Probable Cause Affidavits for Criminal Traffic Offenses In recent months, several of our local law enforcement agencies have inquired about the reason for requests from misdemeanor Assistant State Attorneys for a or probable cause affidavit in criminal traffic cases that have been submitted to our office. This article will address the issue of when, other than for felony cases and DUIs, a is actually necessary. In routine criminal traffic cases, the need for a probable cause affidavit will vary. Of course one is needed for all DUIs, but there are other criminal traffic cases where a probable cause affidavit or may be necessary. The types of cases where a or a sworn investigative narrative is essential include any criminal traffic case where information other than simply the testimony of the ticketing/arresting officer is needed to prove the crime. For example, a case of leaving the scene of a crash should have a narrative that includes how the defendant/driver was identified, by whom, and the circumstances surrounding the identification procedure. It should have the crash report attached as an enclosure, along with any sworn witness statements or the officer s sworn summary of who the witnesses are and what they told him or her. Other examples of charges where a more complete investigative report and/or witness statements might be needed would be reckless driving, fleeing and eluding an officer, driving in violation of a BPO license restriction, or attaching tag not assigned to the vehicle. In general, no or probable cause affidavit is required for the charge of driving while license suspended, canceled or revoked (DWLS). However, the reason for the initial vehicle stop must be noted somewhere on the face of the DWLS citation. Where no information is furnished regarding the reason for the stop, a supplemental police report may have to be requested from the officer. That information is necessary to avoid the inevitable motion to suppress that the defense will file if the reason for the stop is not easily discernible. Please be aware that the clerk s office does not furnish our office with a copy of the court information side of the uniform traffic citations. That is where many officers do make notes concerning the stop of the defendant. It would be helpful to our office to receive routine copies of those notes from your agency. Occasionally, your agency will receive a letter requesting a sworn statement on a misdemeanor DWLS case. This means that in reviewing the defendant s driving history, we have learned that he or she may be eligible for a felony upgrade due to having sufficient prior convictions for DWLS, a Habitual Traffic Offender status, or that their driver s license has been permanently revoked. This information would not necessarily be provided to your officers in the field and the case would come to our office initially as a misdemeanor only. If we find that any of those circumstances exist, however, we can attempt to upgrade the case to a felony. As you are probably aware, a felony information can only be filed based on sworn testimony. Since a uniform traffic citation is not sworn to, the letter is sent to attempt to obtain the sworn statement that is needed to upgrade the case. In addition, the knowledge element of DWLS cases requires the state to prove that the defendant knew his driver s license was suspended. The 8

9 request for a supplemental affidavit or report is to find out if the defendant made any such admissions to the officer during the course of the traffic stop. Each time a criminal traffic citation is issued by an officer, he or she should use common sense and consider if a narrative would be helpful to the prosecution. If so, a should be completed to go along with the citation(s). The gives the officer an opportunity to outline the reason for the stop, any information from witnesses, and very importantly, a place to list any statements or admissions made by the defendant. It is critical for us to know about these statements so they can be properly disclosed through discovery; otherwise, the court may rule that none of those statements will be admissible at the trial of the case. Obtaining Medical Records in Criminal Investigations There are many contexts in which you, as a police officer, may need to obtain medical records of a suspect, defendant, victim, or witness in order to help prove a crime was committed. Medical records of any person are deemed confidential pursuant to Section , Florida Statutes. Until fairly recently, prosecutors and law enforcement believed medical records could only be obtained in one of two ways either by the patient s consent or by subpoena. Actually, thanks in part to Rush Limbaugh, we have confirmation from the courts that we can also use a search warrant to obtain them without the patient being notified or consenting, provided we have probable cause. 16 This article will discuss the methods of obtaining medical records with an emphasis on the subpoena method. The most common, and perhaps most confusing situation where obtaining medical records becomes an issue, is in the context of DUI crashes. Whether they involve manslaughter charges, leaving the scene, or DUI with great bodily injury or property damage; the whole case gets complicated greatly if the suspect has been transported to the hospital. You need to approach this issue carefully. Records obtained improperly may jeopardize the successful prosecution of the case. Consent In most instances involving the medical records of a victim, the majority of victims will be willing to sign a notarized written consent for release of their medical records. Our office can then issue a subpoena and attach a copy of this written consent to the subpoena, which will allow the hospital to send us the records. (Notice the emphasis on the words written consent.) Please feel free to contact our Felony Intake Chief or Misdemeanor Chief for assistance. 16 See Limbaugh v. State, 887 So.2d 387 (Fla. 4th DCA 2004) review denied 903 So.2d 189 (Fl. 2005). 9

10 Obtaining the medical records of a criminal suspect, defendant, or victim who will not provide written notarized consent will require use of another method to secure the records. Subpoena The State can seek a patient s medical records without patient consent by proper issuance of a subpoena. However, before this can be done, Section , Florida Statutes requires that the state provide proper notice to the patient of its intent to obtain the records so they can make any objections they wish. Therefore, notice must be provided to the defendant or his attorney. This is also necessary if the records sought are those of a victim who has denied you consent or anyone else. See also State v. Wenger, 560 So.2d 347 (Fla. 5th DCA 1990); and Hunter v. State, 639 So.2d 72 (Fla. 5th DCA 1994). Following the correct procedure relating to notice is very important. If you or our office obtains the medical records without complying with the statutory requirements of proper notice, the issue cannot be resolved by merely returning the records and correctly providing the statutory notice the court will not allow us to use the records at trial unless we originally made a good faith effort to notify the patient (and in some situations, the patient s counsel.) Frank v. State, 912 So.2d 329 (Fla. 5th DCA 2005). The degree of effort required to demonstrate a good faith effort at notification will vary in each case. However, the courts have held that more effort is needed than just one attempt to send notice by regular or even certified mail. The more recent case of Limbaugh v. State, discussed below, provides another method for obtaining medical records. However, whether subsequent use of a search warrant cures an initial attempt to obtain the records by subpoena without proper notice is not settled yet. 17 Therefore, if you need medical records, get in touch with the Chief of Intake (either Felony or Misdemeanor) at our office and let us assist you. Search Warrant The case of Limbaugh v. State, 887 So.2d 387 (Fla. 4th DCA 2004) review denied 903 So.2d 189 (Fla. 2005), recognized that a search warrant can also be used to obtain medical records without the patient being notified or consenting, provided there is probable cause. An individual s constitutional right of privacy in medical records is not implicated by the State s seizure and review of medical records under a valid search warrant without prior notice or hearing. Limbaugh v. State, 887 So.2d 387, 397 (Fla. 4th DCA 2004), review denied, 903 So.2d 189 (Fla.2005). Consequently, the State has an available alternative if for some reason it is 17 See Farrall v. State, 902 So.2d 820 (Fla. 4th DCA, 2004). 10

11 unwilling, or, unable, to comply with the requirements of Section (4)(d). 18 Please remember when investigating a crime where the medical records of someone involved are needed, those records are confidential and, if we do not proceed appropriately, we may be barred from ever obtaining and using those records. Because this situation crops up most frequently in DUI cases, we will discuss this matter further in the next segment, but the same medical confidentiality issues are involved if medical records are sought from the suspect/defendant or a victim during the commission of another type of crime. Medical Blood vs. Legal Blood Test Under Implied Consent In this section we will discuss the difference between a medical blood draw and a legal blood draw, why you want a legal blood draw even when a medical blood draw/test has been done, and the requirements for obtaining a legal blood draw under implied consent. We will also discuss the implications and requirements relating to obtaining a defendant s medical records and medical blood test results. If the suspect in a DUI or BUI case was injured in the crash and was transported to the hospital, the hospital itself will typically take blood of the individual for medical testing purposes. This is what we refer to as medical blood. Blood withdrawn from the suspect at the request of a law enforcement officer using an authorized FDLE blood kit pursuant to implied consent is what we refer to as legal blood. Why would we want a legal blood draw if a medical blood has been done? Please understand that with a medical blood, while we get the result in, the State does not get the presumptions of impairment read to the jury as we do when using a legal blood draw. Also, when there is a legal blood draw we use FDLE s experts to testify about not only the result, but the meaning of the result and other circumstances relating to the reliability of the result as an indicator of impairment at the time of the crash. This is because unless FDLE has done the examination of the blood sample, their experts cannot appear in court to testify, as happens with a legal blood sample. Therefore, we ask that you proceed to obtain a legal blood where you have the ability to do so. A legal blood draw is authorized under implied consent only as outlined in Florida Statutes. The DUI or BUI suspect s arrest is not required for a blood draw under Florida law. We will first discuss the different requirements for a legal blood draw under implied consent. Florida Statutes Sections (1)(c) or (1)(c) DUI or BUI with NO Serious Bodily Injury or Death If you are investigating a misdemeanor DUI or BUI where no serious bodily injury or death resulted, you are entitled to obtain a legal blood draw pursuant to Florida law under the following circumstances, all three of which must exist: 18 See Frank v. State, 912 So.2d 329 at (Fla. 5th DCA 2005). 11

12 There was reasonable cause to believe the person was driving or in actual physical control of a motor vehicle/vessel (as applicable) while under the influence of alcoholic beverages or chemical or controlled substances; and The person appears for treatment at a hospital, clinic, or other medical facility (an ambulance qualifies as a medical facility); and The administration of a breath or urine test is impractical or impossible. 19 Furthermore, the law requires the following: The blood test must be performed in a reasonable manner. Only a physician, certified paramedic, registered nurse, or other personnel authorized by the hospital to draw blood or a licensed clinical laboratory director, supervisor, technologist, or technician acting at the request of a law enforcement officer may withdraw the blood under implied consent. If you have probable cause for DUI or BUI and the driver is unconscious, consent will be presumed and you can get a blood sample. You cannot physically force the driver to give a blood sample in a case where there is no death or serious bodily injury, but there are license suspension consequences for a refusal. The implied consent warning should always be read if the defendant refuses the blood test. FLORIDA STATUTES SECTIONS (1)(a) or (1)(a) DUI or BUI CAUSING DEATH OR SERIOUS BODILY INJURY If the DUI or BUI driver caused or contributed to an accident resulting in death or great bodily injury, Florida law allows for a forced legal blood draw under the following circumstances, both of which must exist: Law enforcement officer has probable cause to believe that a motor vehicle or vessel was driven/operated by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances; and The DUI driver has caused or contributed to the death or serious bodily injury of a human being (can be injury to another or the DUI/BUI driver). Furthermore, the law requires the following: The blood test must be performed in a reasonable manner. Only a physician, certified paramedic, registered nurse, or other personnel authorized by the hospital to draw blood or a licensed clinical laboratory director, supervisor, technologist, or technician acting at the request of a law enforcement officer may withdraw the blood under implied consent. 19 If you suspect impairment by alcohol, a urine test is impractical or impossible because it will not quantify the amount of alcohol in the body and is primarily used for drugs. 12

13 Most significantly, in cases involving crashes resulting in death or great bodily harm, the law provides that reasonable force may be used if necessary to require the defendant to submit. If you have probable cause for DUI or BUI and the driver/operator caused death or serious bodily injury, the defendant does not have the option of refusing you can force the defendant to give a legal blood sample. You can get a forced legal blood sample from the defendant even if the only one seriously injured is the defendant himself/herself. However, if the defendant only seriously injures himself/herself, the defendant cannot be charged with DUI causing serious bodily injury. The defendant can only be charged with simple DUI. Serious bodily injury is defined as a physical condition that causes a substantial risk of death, serious personal disfigurement or protracted loss or impairment of the function of a bodily member or organ. There are several components to the various DUI-related crimes for which you must have probable cause in order to provide the legal basis for requesting a legal blood draw. In State v. Cesaretti, 632 So.2d 1106 (Fla. 4th DCA 1994), the court determined that the police officer had ample probable cause to draw blood where the officer smelled alcohol on the defendant s breath (thus establishing probable cause to believe defendant was under the influence of alcohol) and the circumstances surrounding the accident victim s injuries (i.e., extensive damage to victim s vehicle, victim removed from vehicle by the jaws of life, victim taken from scene in an ambulance, paramedics told the officer that the victim had possible internal injuries, etc.) provided probable cause to believe the defendant caused serious bodily injury. Probable cause to believe there is serious bodily injury is determined at the time of the investigation, not after the fact. See, Carbone v. State, 564 So.2d 1253 (Fla. 4th DCA 1990), where the court ruled the officer had probable cause to believe that the accident victim was suffering from serious bodily injuries where he was informed by paramedics that the accident victim was unconscious and possibly suffering from neck or unspecified internal injuries; and State v. Cesaretti, 632 So.2d 1105 (Fla. 4th DCA 1994) where the officer s observations of the accident victim and victim s vehicle combined with statements made by paramedics to officer regarding victim s possible internal injuries provided probable cause to believe that defendant had serious bodily injury. Where the police lack probable cause, they lack the authority under the implied consent statutes to request or order a DUI arrestee to submit to a blood, breath, or urine sample; and any sample obtained and its results will be inadmissible even if a traditional predicate can be laid. State v. Slaney, 653 So.2d 422 (Fla. 3d DCA 1995). As you know from experience, there are times when a DUI or BUI suspect has been taken to the hospital, but the circumstances do not meet the requirements for a forced blood draw. Therefore, when you are attempting to obtain a legal blood draw pursuant to Sections or , Florida Statutes, and the defendant refuses, treat the case as you would any other refusal. 13

14 Do not request or get a copy of the medical records from the hospital. Likewise, where the legal blood draw is done pursuant to Sections or , F.S. (forced blood draw based upon death or SBI), do not request or get a copy of the medical records from the hospital. Independent of whether the defendant gives you a legal blood sample at the hospital or you obtain a forced legal blood sample, the State Attorney s Office can request a subpoena for medical records which will reflect the medical blood draw results, but only after giving proper notice to the defendant. Please DO NOT obtain a copy of the defendant s medical records from the hospital, or we will probably be barred from utilizing any of the medical records. Although Sections and , F.S. (and related BUI laws) allow medical personnel to disclose results of a medical blood test result, there are several requirements or limitations on such disclosure and in many instances the disclosure may exceed or fail to meet the requirements of the statute. Medical personnel may only disclose results of a medical blood test result as follows: The person s medical blood alcohol result meets or exceeds the blood alcohol level specified in s (1)(b) 20. Disclosure, if given at all, is to be given to the officer within a reasonable time after the health care provider receives the medical blood test result. The only information to be disclosed regarding the medical blood test is the name of the patient, name of the person who withdrew the blood, the blood-alcohol level indicated by the medical blood test, and the date and time the test was administered. Additionally, the statute provides that the medical blood result conveyed shall be used only for the purpose of providing the law enforcement officer with reasonable cause to request the withdrawal of a legal blood sample pursuant to implied consent. If the time frame for drawing a meaningful legal blood sample has passed, you should not ask for the results. Even though Florida statutes recognize the limited disclosure of medical blood test results as outlined above, the issue of medical record confidentiality and the ramifications of HIPPA 21 continue to be litigated with differing outcomes. 22 For example, the case of State v. Kutik, 914 So.2d 484 (Fla. 5th DCA 2005), in discussing the case of Thomas v. State, 820 So.2d 382 (Fla. 2nd DCA 2002), made clear that these statutes allow for oral disclosure of the medical blood result but only for the limited purpose of providing probable cause to request a law enforcement blood draw Health Insurance Portability and Accountability Act of The newly enacted privacy provisions of the Health Insurance Portability and Accountability Act of 1996 ( HIPAA ), were not enforceable until April 14, See Thomas v. State, 820 So.2d 382 (Fla. 2nd DCA 2002) and discussion of Thomas in State v. Kutik, 914 So.2d 484 (Fla. 5th DCA 2005). 14

15 Thus, absent the medical blood test result information being used for the purpose of requesting a law enforcement blood draw, the officer should contact the state attorney to obtain a subpoena for this information to be sure that there is compliance with Section Additionally, at the Seminole County Court level, defendants have also argued that including the medical blood test results in the police reports may have tainted the prosecutor s decision on whether to file criminal charges! When investigating a DUI or BUI crash case, it is best to remember and follow these guidelines in order to comply with the statutory requirements and avoid unneeded litigation in these cases: Look at Sections or , Florida Statutes if you have a misdemeanor DUI or BUI and determine whether the requirements of the statute are met for a legal blood draw (nonforced). Look at Sections or , Florida Statutes if you have a DUI or BUI with death or SBI and determine whether the requirements of the statute are met for a forced legal blood draw. If the requirements are met for a non-forced legal blood draw, then request the legal blood draw. If granted, have the authorized hospital personnel take the blood using the FDLE blood kit. If the suspect refuses, read implied consent and document the refusal as you would in any other refusal case. If the requirements are met for a forced legal blood draw, request the legal blood draw. Regardless of whether the suspect refuses you can obtain the legal blood draw in a reasonable manner. Do not request the hospital to provide you with the written medical records of the DUI/BUI defendant. Do not take written medical records from the hospital without written notarized consent from the patient, meeting the notice and subpoena requirements of Section or getting a search warrant. (Let our office handle obtaining these records via subpoena.) Do not obtain, via oral communication, the medical blood test results unless they have been obtained within a reasonable amount of time from the crash such that a request for a legal blood draw would not be too far removed from the time of the crash. (In most cases you won t even need to be told the medical blood result where there is sufficient probable cause from the other evidence in the crash situation.) If the hospital orally conveys the results of the medical blood test to you, we prefer that you make reference to the fact that they told you the results but not include the actual results in the report. 15

16 Just because the hospital took blood for medical purposes does not mean you shouldn t seek a legal blood draw under implied consent. The medical blood and the legal blood are separate and independent tests. Seek a legal blood draw if the statutory requirements are met. Thus, where there is no qualifying injury allowing for a forced legal blood draw and in situations where implied consent is read and the defendant refuses the blood draw, as well as in some situations where legal blood has been suppressed or was not obtained initially for some other reason, the state will often seek to obtain the actual paper medical records of the medical blood test performed by the hospital. Please obtain a legal blood draw where possible. At trial the State gets the presumptions of impairment read to the jury when using a legal blood draw, and the state also has the expert witness from FDLE who analyzed the sample. On the other hand, if the only blood evidence offered is the medical blood results, the State does not get the presumptions nor do we have an expert witness to explain the meaning of the medical blood test results, unless we hire one to do so. A subpoena for medical records pertaining to DUI or BUI cases is limited in scope to those records which would be relevant to showing the impairment of the defendant s faculties. Thus, the state seeks only the patient/defendant s medical records and reports pertaining to blood alcohol or controlled substances and the doctor or nurse s notes regarding the defendant s physical and mental condition during his or her admission stay while in the emergency room only. We do not seek, for example, actual EKG printouts or documents regarding his or her condition the day after the admission. In any DUI or BUI crash case, analyze the case for a legal blood draw and obtain one if the statutory prerequisites are met. For the reasons previously stated, do not forego a legal blood draw simply because a blood sample was taken by the hospital for medical purposes. We would urge you to review the forms being used in these situations. Some of the agency forms in use appear to be requesting the hospital to give you the actual medical records. Please make the necessary revisions to these forms to avoid unintended retrieval of medical records in these cases. A suggested Revised Form is included (two sided). One final important point is that in every case in which a legal blood draw is taken, it is crucial that you include in your report the name of the person who drew the blood from the defendant/suspect. 23 Please also include a copy of the Certification of Blood Withdrawal form signed by the person who drew the suspect s blood (currently this is FDLE/ATP Form 11- Revised August 2001, a copy of which is included with this article). Further, if a suspect gives consent, we encourage that a written consent form be used with the suspect. A copy of the signed form should be included with your case as well. If the defendant refused a legal blood draw in a request pursuant to Sections (1)(c) or (1)(c), please complete a refusal affidavit. 23 If you learn that a medical blood draw was also completed and you know the name of the medical personnel who withdrew the medical blood draw sample, please include this person s name in your report as well. 16

17 LAW ENFORCEMENT BLOOD TEST WITHDRAWAL FORM DUI or BUI - ALCOHOL, CHEMICAL SUBSTANCES, OR CONTROLLED SUBSTANCES WITH NO DEATH OR SERIOUS BODILY INJURY I have reasonable cause to believe that (Printed name of law enforcement officer) was driving or in actual physical control (Print name of patient/suspect) of a motor vehicle or vessel while under the influence of alcoholic beverages or chemical or controlled substances. The patient/suspect has appeared for treatment at a hospital, clinic, or other medical facility (an ambulance qualifies as a medical facility), and the administration of a breath or urine test is impractical or impossible. Therefore, I am requesting that a blood sample be drawn from said patient/suspect pursuant to: (CHECK ONE OF THE FOLLOWING TWO SECTIONS) Section (1)(c), Florida Statutes - DUI WITHOUT SERIOUS BODILY INJURY OR DEATH OR Section (1)(c), Florida Statutes - BUI WITHOUT SERIOUS BODILY INJURY OR DEATH Furthermore, this is to document that: The patient/suspect has consented to the withdrawal of blood. The patient/suspect is unconscious and therefore, consent is presumed. Name of person withdrawing blood and their title: (Printed name of person drawing blood) (Title of person drawing blood) (Date and time of blood withdrawal) (Signature of Law Enforcement Officer) (Agency) (Badge No.) *Only a physician, certified paramedic, registered nurse, or other personnel authorized by the hospital to draw blood or a licensed clinical laboratory director, supervisor, technologist, or technician acting at the request of a law enforcement officer may withdraw the blood under implied consent. Person withdrawing blood must complete FDLE/ATP Certification of Blood Withdraw Form. (side one) 17

18 LAW ENFORCEMENT BLOOD TEST WITHDRAWAL FORM DUI or BUI - ALCOHOL, CHEMICAL SUBSTANCES, OR CONTROLLED SUBSTANCES WITH DEATH OR SERIOUS BODILY INJURY I have reasonable cause to believe that (Printed name of law enforcement officer) was driving or in actual physical control (Print name of patient/suspect) of a motor vehicle or vessel while under the influence of alcoholic beverages or chemical or controlled substances. The patient/suspect has caused or contributed to the death or serious bodily injury of a human being. Therefore, I am requesting that a blood sample be drawn from said patient/suspect pursuant to: (CHECK ONE OF THE FOLLOWING TWO SECTIONS) Section (1)(a), Florida Statutes - DUI WITH SERIOUS BODILY INJURY OR DEATH OR Section (1)(a), Florida Statutes - BUI WITH SERIOUS BODILY INJURY OR DEATH Furthermore, this is to document that: The patient/suspect has consented to the withdrawal of blood. Although the patient/suspect has not given consent, I am requesting that blood be drawn in a reasonable manner and I will use reasonable force, if necessary, to restrain this patient/suspect in order for the blood to be drawn in a reasonable and safe manner. Name of person withdrawing blood and their title: (Printed name of person drawing blood) Title of person drawing blood) (Date and time of blood withdrawal) (Signature of Law Enforcement Officer) (Agency) (Badge No.) * Only a physician, certified paramedic, registered nurse, or other personnel authorized by the hospital to draw blood or a licensed clinical laboratory director, supervisor, technologist, or technician acting at the request of a law enforcement officer may withdraw the blood under implied consent. Person withdrawing blood must complete FDLE/ATP Certification of Blood Withdraw Form. (side two) 18

19 Florida Department of Law Enforcement Alcohol Testing Program CERTIFICATION OF BLOOD WITHDRAWAL I certify that as a physician, certified paramedic, registered nurse, licensed practical nurse, or other person authorized by a hospital to draw blood, or as a licensed clinical laboratory director, supervisor, technologist or technician, I am authorized by , , , and , Florida Statutes, to withdraw blood at the request of a law enforcement officer. I certify that on I withdrew blood from (Date) at the request of (Driver) (Officer) The blood sample(s) were collected and labeled in accordance with the provisions of Rule 11D , Florida Administrative Code. Before collecting the blood sample(s), the skin was cleansed with an antiseptic that did not contain alcohol. The blood sample(s) were collected in glass evacuation tubes that contained a preservative and an anticoagulant. Immediately after collection, the tubes were inverted several times. The blood collection tubes were labeled with the name of the person tested, the date and time the sample(s) were collected and the initials of the person who collected the sample(s). (Printed name of person withdrawing blood) (Title) (Signature) (Date) May also be used in administrative proceedings pursuant to s , Florida Statutes. To be forwarded to the local Bureau of Driver Improvement Office, Division of Driver Licenses, Department of Highway Safely and Motor Vehicles. FDLE/ATP Form 11 Revised August,