Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McGraw v. State

Florida Court of Appeals, Fourth District

March 21, 2018

BYRON MCGRAW, Appellant,

         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who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such [blood] test.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.


         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.


         "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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.