final until disposition of timely filed motion for rehearing.
Petition for writ of certiorari to the Seventeenth Judicial
Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case
No. 16-002296 CF10A.
Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for petitioner.
Michael D. Leader of Leader & Leader, P.A., Fort
Lauderdale, for respondent.
State of Florida seeks certiorari review of a pretrial order
that compels the non-testifying disabled victim in a pending
DUI criminal case to undergo a neurological examination to
ascertain his conscious awareness of the legal proceeding.
Upon receipt of the results, the trial court will rule on the
defendant's pending motion in limine, which seeks to
exclude the victim from the courtroom during his trial. We
grant the petition and quash the order compelling the exam.
Smart v. Bock, 220 So.3d 1196, 1197 (Fla. 4th DCA
2017) (recognizing that certiorari review lies to review
order compelling a mental health exam).
I, section 16(b) of the Florida Constitution provides that
crime victims have the right to be present at all crucial
stages of criminal proceedings "to the extent that these
rights do not interfere with the constitutional rights of the
accused." The Florida Constitution's language and
the commentary currently state that the victim's rights
are subordinate to the rights of the accused to the extent
they would interfere with the accused's rights.
trial court ordered the examination in its effort to balance
the disabled victim's constitutional right to be present
at trial with the defendant's constitutional right to a
fair trial. To that end, the neurologist's role is to
determine if the catastrophic injury that the victim suffered
prevents him from understanding the judicial proceedings. The
trial court indicated that the victim will be allowed to be
present in the courtroom if he is "aware."
grant the petition for two reasons. First, the exam infringes
upon the victim's right to remain inviolate from an
invasive examination not authorized or required by law.
See Fla. Const., art. I, § 23. ("Every
natural person has the right to be let alone and free from
governmental intrusion into the person's private life
except as otherwise provided therein."); State v.
Smith, 260 So.2d 489, 491 (Fla. 1972) (holding that
trial court could not compel a witness to be examined for
visual acuity). As the Florida Supreme Court stated in
Smith, "[n]o right is held more sacred, or is
more carefully guarded, by the common law, than the right of
an individual to the possession and control of his own
person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law."
Smith, 260 So.2d at 491 (citation omitted).
the record does not reflect that this is a case where the
exam targets evidentiary or impeachment issues. See
generally State v. Rhone, 566 So.2d 1367 (Fla. 4th DCA
1990); State v. Kuntsman, 643 So.2d 1172 (Fla. 3d
DCA 1994). We note that, even in such cases, Florida
appellate courts have closely guarded the victim's
privacy interests. See State v. Farr, 558 So.2d 437,
438 (Fla. 4th DCA 1990) (quashing order requiring second
examination of minor sex crime victim in the absence of
extreme or compelling circumstances); Dinkins v.
State, 244 So.2d 148, 150 (Fla. 4th DCA 1971) (upholding
denial of motion to compel examination of sexual battery
victim because exam was not essential to prevent miscarriage
of justice); State v. Diamond, 553 So.2d 1185, 1194
(Fla. 1st DCA 1988) (quashing order for gynecological exam of
child witness and citing Smith as a "firm
warning" against the "spontaneous generation"
of a criminal defense right to subject victims to physical
decline to consider the cases cited by the parties addressing
civil suits wherein courts have considered excluding the
plaintiff from trial. Those cases do not address the limited
issue before this court: the propriety of the victim's
neurological exam. Therefore, in granting this petition, we
make no finding regarding the pending motion to exclude the
victim from the courtroom.
extent the trial court seeks to balance the victim's
constitutional right to be present at trial with the
defendant's constitutional right to a fair trial, it will
have to do so without subjecting the victim to the