Not
final until disposition of timely filed motion for rehearing.
Appeal
from the County Court for the Fifteenth Judicial Circuit,
Palm Beach County; Leonard Hanser, Judge; L.T. Case No.
50-2016-CT-013594-AXXX-NB.
Carey
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela
Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for
appellee.
Kuntz,
J.
The
Defendant appeals an order denying his motion to suppress the
results of a warrantless blood draw in a DUI case. The county
court found the blood draw was an unconstitutional search
under the Fourth Amendment, but denied the motion to suppress
based on the "good faith" exception to the warrant
requirement. The county court also certified the following
question to be of great public importance:
Does
the following sentence in § 316.1932(1)(c), Florida
Statutes,
Any person who is incapable of refusal by reason of
unconsciousness or other mental or physical condition is
deemed not to have withdrawn his or her consent to such
[blood] test.
remain constitutionally valid under the Fourth Amendment to
the United States Constitution and Article 1, Section 12 of
the Florida Constitution in light of Missouri v.
McNeely, [569 U.S. 141');">569 U.S. 141] (2013), State v. Liles,
191 So.3d 484 (Fla. 5th DCA 2016), and Birchfield v.
North Dakota, 136 S.Ct. 2160 (2016)?
We
exercised our discretionary jurisdiction under Florida Rule
of Appellate Procedure 9.030(b)(4)(A) to answer the certified
question.
We
address the case before us, and the certified question, in
multiple parts. First, we discuss the facts relevant to this
appeal. Second, we discuss the Defendant's motion to
suppress and the court's ruling. Third, we discuss
Florida's implied consent law. Fourth, we analyze the
Supreme Court's decisions in Missouri v.
McNeely, 569 U.S. 141');">569 U.S. 141 (2013), and Birchfield v.
North Dakota, 136 S.Ct. 2160 (2016), and decisions from
courts around the country that have traveled this same path.
Fifth, we apply the Supreme Court's decisions in
McNeely and Birchfield to the case before
us.
In
applying the Supreme Court's decisions, we rephrase the
certified question:
Under the Fourth Amendment, may a warrantless blood draw of
an unconscious person, incapable of giving actual consent, be
pursuant to section 316.1932(1)(c), Florida Statutes (2016)
("Any person who is incapable of refusal by reason of
unconsciousness or other mental or physical condition is
deemed not to have withdrawn his or her consent to [a blood
draw and testing]."), so that an unconscious defendant
can be said to have "consented" to the blood draw?
We
answer the rephrased certified question in the affirmative,
and affirm the county court's denial of the
Defendant's motion to suppress.
Background
i.
The Accident and Investigation
The
Defendant was involved in a single car rollover accident,
causing damage to his vehicle and injury to himself. An
officer assigned to the special operations division of the
Riviera Beach Police Department arrived at the scene around
8:00 a.m. When he arrived, officers had established a crash
site, and Riviera Beach Fire Rescue was "cutting away at
portions of the vehicle" trying to extricate the
Defendant.
The
officer testified that the Defendant was unconscious and
unresponsive to Fire Rescue. While standing "two to
three feet behind the Fire Rescue personnel" he could
detect the odor of alcohol from the Defendant, his clothing,
and the vehicle.
Fire
Rescue removed the Defendant from the vehicle and transported
him to the emergency room. The officer followed the ambulance
to the hospital, a trip that took around five minutes. At the
hospital, the officer again made contact with the Defendant,
who remained unconscious. The officer testified that after
the medical professionals completed treating the Defendant,
they brought the Defendant into a room and placed in
"some sort of device that was actually just keeping his
head still and straight at that time." The officer
observed bruises and scratches, but observed no traumatic
injuries to his body.
The
officer testified that, at this point, he was investigating a
possible driving under the influence case and "wanted to
request . . . a sample of his blood." The officer
"attempted to rub [the defendant's] sternum to see
if there would be any kind of reaction from pain compliance.
And the registered nurse who was assisting [the officer] also
conducted a sternum rub, to which we had no effects at
all." At that time, the officer requested that the
registered nurse assigned to the Defendant draw his blood.
After they drew his blood, and about thirty to sixty minutes
after arriving at the hospital, the officer left the hospital
and had no further contact with the Defendant or the hospital
about the Defendant.
ii.
The Defendant's Motion to Suppress
The
State later charged the Defendant by amended information with
two counts of driving under the influence causing or
contributing to injury to persons or property (enhanced).
Arguing "the U.S. Supreme Court [recently] held that
warrantless blood draws are not permissible incident to
arrest, and are not per se permissible under the exigent
circumstances exception, " the Defendant moved to
suppress the blood draw.
The
court held a hearing on the Defendant's motion to
suppress, hearing testimony from the officer, and
subsequently rendered an order denying the motion to suppress
and certifying a question of great public importance. The
court held Florida's implied consent law does not provide
consent for a warrantless blood draw. The court then found
the officer's testimony supported no other exception to
the warrant requirement. Finally, the court found that the
officer proceeded in an objectively reasonable reliance on
the validity of the implied consent law. As a result of the
officer's good faith reliance on a presumptively valid
statute, the court denied the motion to suppress. The
Defendant was convicted, and appeals the court's ruling.
Analysis
"We
review motions to suppress under a mixed standard, deferring
to the trial court's factual findings but reviewing legal
conclusions de novo." Strachan v. State, 199
So.3d 1022, 1024 (Fla. 4th DCA 2016). And, the
constitutionality of a statute presents a pure question of
law subject to de novo review. Braddy v.
State, 219 So.3d 803, 819 (Fla. 2017).
i.
Florida's Implied Consent Law
The
Fourth Amendment to the United States Constitution protects
"persons, houses, papers and effects against
unreasonable searches." Amend. IV, U.S. Const. In
Florida, we construe this right "in conformity with
[and] as interpreted by the United States Supreme
Court." Art. I, § 12, Fla. Const. In other words,
"the search and seizure provision of the Florida
Constitution imposes no higher standard than that of the
Fourth Amendment to the United States Constitution."
State v. Hetland, 366 So.2d 831, 836 (Fla. 2d DCA
1979).
The
Defendant argues that the blood draw violated his Fourth
Amendment rights. First, we begin with the premise that the
"compulsory administration of a blood test . . . plainly
involves the broadly conceived reach of a search and seizure
under the Fourth Amendment." Schmerber v.
California, 384 U.S. 757, 767 (1966). In other words, a
blood draw is a "search" under the Fourth
Amendment. Therefore, the Defendant is initially correct
that, to compel a blood draw, the State must either: (a)
obtain a warrant; or (b) establish a valid exception to the
warrant requirement. It is undisputed that the State did not
obtain a warrant. Rather, the State relies on an exception to
the warrant requirement - namely, the Defendant's consent
based on Florida's implied consent law.
"All
50 States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within
the State, to consent to [blood alcohol content] testing if
they are arrested or otherwise detained on suspicion of a
drunk-driving offense." McNeely, 569 U.S. at
161.
Generally,
our implied consent law is codified in chapter 316, Florida
Statutes. See §§ 316.1932, .1933, .1934,
Fla. Stat. (2015). These statutes "essentially require
all persons accepting a license to drive in Florida to
consent to a blood-alcohol test upon being arrested for
driving under the influence." Montes-Valeton v.
State, 216 So.3d 475, 481 n.1 (Fla. 2017) (quotation
omitted).
Specifically at issue here is section 316.1932(1)(c):
Any person who accepts the privilege extended by the laws of
this 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 of the blood . . . . Any
person who is incapable of refusal by reason of
unconsciousness or other mental or physical condition is
deemed not to have withdrawn his or her consent to [a blood
draw and testing].
The
Defendant argues this statute is insufficient, by itself, to
satisfy the Fourth Amendment. Further, he argues it is
unconstitutional "to the degree it provides involuntary
implied consent to perform a blood draw any time a person
suspected of driving under the influence is unconscious at a
hospital - this is because implied consent is not the same as
consent for Fourth Amendment purposes."
In
addition to recent United States Supreme Court decisions, the
Defendant cites two Florida decisions in support of his
position. See Liles, 191 So.3d at 486; Williams
v. State, 167 So.3d 483, 488 (Fla. 5th DCA 2015),
vacated, No. SC15-1417, 2016 WL 6637817 (Fla. Nov.
9, 2016).[1]While we can certainly look to the
decisions of our sister court, we first consider decisions
from the United States Supreme Court, as, again, Florida
provides no Fourth Amendment protection beyond that
determined by the Supreme Court.
ii.
The Supreme Court's Decisions in McNeely and
Birchfield
Two
recent United States Supreme Court cases control our
resolution of this case.
First,
in Missouri v. McNeely, 569 U.S. 141');">569 U.S. 141 (2013), the
defendant was stopped by a Missouri police officer and
declined to use a portable breath-test device to measure his
blood alcohol level. Id. at 145. The officer
arrested him, and took him to a local hospital for blood
testing. Id. He moved to suppress the blood test,
arguing the compelled taking of his blood without a warrant
violated the Fourth Amendment. Id. at 146. The trial
court granted his motion, and the Missouri Supreme Court
affirmed. The United States Supreme Court granted certiorari
to determine "whether the natural metabolization of
alcohol in the bloodstream presents a per se exigency that
justifies an exception to the Fourth Amendment's warrant
requirement for nonconsensual blood testing in all
drunk-driving cases." Id. at 145. Justice
Sotomayor, writing for a fractured majority, [2] rejected
Missouri's argument for a per se exception to the warrant
requirement in DUI investigations based on exigent
circumstances. Id. The Court held that "that
exigency in this context must be determined case by case
based on the totality of the circumstances."
Id.
Three
years after McNeely, and after the accident at issue
here, the Supreme Court issued Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016). Birchfield
involved three consolidated cases, two arising from North
Dakota and a third from Minnesota. Danny Birchfield
accidentally drove his car off a North Dakota highway, and
later refused to consent to a blood draw. Id. at
2170-71. William Robert Bernard, Jr. had gotten a truck stuck
in a river at a boat ramp in Minnesota, and refused to allow
an officer to give him a breath test. Id. at 2171.
An officer saw the third petitioner, Steve Michael Beylund,
unsuccessfully try to turn into a driveway. Unlike Birchfield
and Bernard, Beylund consented to a blood draw at a nearby
hospital after the officer read him North Dakota's
implied consent warning. Id. at 2171-72.
The
issue before the Supreme Court was "whether motorists
lawfully arrested for drunk driving may be convicted of a
crime or otherwise penalized for refusing to take a
warrantless test measuring the alcohol in their
bloodstream." Id. at 2172. The Court first
reviewed its Fourth Amendment jurisprudence in the context of
DUI cases; more specifically in the context of the
search-incident-to-arrest doctrine. Id. at 2173-76.
As with searches of cell phones and DUI investigations, the
situation before the Court could not have been envisioned in
the founding era. Therefore, the Court applied a balancing
test to determine "whether to exempt a given type of
search from the warrant requirement by assessing, on the one
hand, the degree to which it intrudes upon an
individual's privacy and, on the other, the degree to
which it is needed for the promotion of legitimate
governmental interests." Id. at 2176 (internal
citation omitted).
Examining
the effect of breath tests and blood tests on an
individual's privacy interests, the Court reaffirmed its
earlier conclusion that a breath test does not implicate
significant privacy concerns. Id. (citing
Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S.
602, 616-17 (1989)). It noted that the results of a breath
test capture only limited information - the amount of alcohol
in a defendant's breath; and participation in a breath
test is not an experience likely to enhance any embarrassment
to the defendant. Id. at 2177.
Blood
tests, the Court found, "are a different matter."
Id. at 2178. Blood tests pierce the skin and are far
more intrusive than a breath test. And, the Court explained,
a blood test "places in the hands of law enforcement
authorities a sample that can be preserved and from which it
is possible to extract information beyond a simple BAC
reading." Id. at 2178.
After
determining the scope of the privacy interest, the Court
turned to the states' asserted need to obtain blood
alcohol readings. Id. On that issue, there is no
doubt the states have a legitimate interest in ensuring the
safety of the roads. Id. The Court rejected the
dissent's argument that "an officer making an arrest
for drunk driving should not be allowed to administer a BAC
test unless the officer procures a search warrant or could
not do so in time to obtain usable test results."
Id. at 2179. This argument contravened their
"decisions holding that the legality of a search
incident to arrest must be judged on the basis of categorical
rules." Id. Further, "requiring the police
to obtain a warrant in every case would impose a substantial
burden but no commensurate benefit." Id. at
2181- 82.
The
Court then turned to the constitutionality of warrantless
breath and blood tests. As for breath tests, the Court found
"that the Fourth Amendment permits warrantless breath
tests incident to arrests for drunk driving. The impact of
breath tests on privacy is slight, and the need for BAC
testing is great." Id. at 2184. The Court
reached a different answer about blood tests, stating
"[b]lood tests are significantly more intrusive, and
their reasonableness must be judged in light of the
availability of the less invasive alternative of a breath
test. Respondents have offered no satisfactory justification
for demanding the more intrusive alternative without a
warrant." Id.
Although
not relevant to any of the three petitioners in
Birchfield, but relevant to our case, the Court
commented on blood draws of unconscious drivers:
It is true that a blood test, unlike a breath test, may be
administered to a person who is unconscious (perhaps as a
result of a crash) or who is unable to do what is needed to
take a breath test due to profound intoxication or injuries.
But we have no reason to believe that such situations are
common in ...