1. law, govt and politics

The Rap Sheet
Legal News for Law Enforcement in Brevard and Seminole Counties
State Attorney Norm Wolfinger
Editor, Assistant State Attorney Chris White
June 2007
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).
See, Berkermer v. McCarty, 468 US 420, 440(1984); Pennsylvania v. Muniz, 496 US, 482, 590-600 (1990); Pennsylvania v.
Bruder, 488 US 9, 11 (1988); Allred v. State, 622 So.2d 984, 986-87 (Fla. 1995); State v. Burns, 661 So.2d 842, 846-47 (Fla. 5th
DCA 1995); and Taylor v. State, 648 So.2d 701 (Fla. 1994).
2
1
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. 3
3. 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
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 316.066(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. 316.1932 or s. 316.1933 are not confidential and
shall be admissible into evidence in accordance with the provisions
of s. 316.1934(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 316.062, 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
6
Laws 1991, c. 91-255, § 14, eff. July 1, 1991, in subsec. (4), inserted the third sentence.
Florida Statute 316.066(4) was amended in 1982 by Laws of Florida 82-155 to add this sentence.
3
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 316.066(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 316.066 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 316.066(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 322.2615, Florida Statutes. 11 Although earlier cases included noncommunicative evidence under the crash report privilege, this was changed by an amendment to
the statute in 1982. 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 316.066(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 non7
Department of Highway Safety and Motor Vehicles v. Corbin, 527 So.2d 868 (1st DCA 1988).
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 433
9
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,
03-07-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).
8
4
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 02-11080-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 316.066(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. 06-07-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
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 316.1932(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
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. 05-2005-AP-005871 (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 Ҥ316.1932(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
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 923.01 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 923.01 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 923.01 may be necessary. The types of cases where a 923.01 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 923.01 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
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 923.01 should be
completed to go along with the citation(s). The 923.01 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 395.3025, 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
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 395.3025, 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
unwilling, or, unable, to comply with the requirements of Section
395.3025(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 316.1932(1)(c) or 327.352(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
• 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 316.1933(1)(a) or 327.353(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
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 316.1932 or 327.352,
Florida Statutes, and the defendant refuses, treat the case as you would any other refusal.
13
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 316.1933 or 327.353, 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 316.1932 and 316.1933, 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. 316.193(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.
20
.08.
Health Insurance Portability and Accountability Act of 1996. The newly enacted privacy provisions of the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”), were not enforceable until April 14, 2003.
22
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).
21
14
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 395.3025. 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 316.1932 or 327.352, 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 316.1933 or 327.353, 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 395.3025 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
• 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 11Revised 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 316.1932(1)(c) or 327.352(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
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 316.1932(1)(c), Florida Statutes - DUI WITHOUT SERIOUS BODILY
INJURY OR DEATH
OR
____ Section 327.352(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
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 316.1933(1)(a), Florida
INJURY
OR DEATH
Statutes
-
DUI
WITH
SERIOUS
BODILY
OR
____ Section 327.353(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
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 316.1932, 316.1933, 322.63, 327.352
and 327.353, 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 11D8.012, 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. 322.2615, 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, 2001
19