INTRODUCTION

Petitioner XXXXXXXXXX, through counsel, pursuant to Florida Rule of Appellate Procedure 9.100, petitions the court for a writ of certiorari seeking review of an appellate decision of the circuit court.

An appropriate appendix is being contemporaneously filed.  Citations to the appendix will refer to the page numbers sequentially affixed to the documents therein.

XXXXXXXXXX was charged in county court with driving under the influence.  XXXXXXXXXX’s trial attorney filed a motion to suppress evidence.  The county court held a hearing on the motion.  After examining the evidence and hearing arguments from the parties, the county court granted the motion. (92; 32-34).  The State appealed to the circuit court.  The circuit court, acting in an appellate capacity, overturned the trial court’s order of suppression. (146-148).  XXXXXXXXXX challenges the circuit court’s appellate decision and argues that the circuit court failed to apply the correct law and departed from the essential requirements of law by impermissibly re-weighing evidence.

 I. JURISDICTIONAL STATEMENT

 This court has jurisdiction to issue a writ of certiorari pursuant to Article V, section 4(b)(3) of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(b)(2).

The order to be reviewed was rendered on February 21, 2013.  This petition is timely pursuant to Florida Rule of Appellate Procedure 9.100(c).

 

II. STATEMENT OF THE FACTS

XXXXXXXXXX was charged with driving under the influence. (8-9).

XXXXXXXXXX’s trial lawyer filed a motion which sought to suppress the results of a blood draw obtained by law enforcement. (23).

A hearing was held on the motion. (51).  At that hearing the State acknowledged that it bore the burden to establish grounds for admission. (53).

The only witness called was Tallahassee Police Department Officer XXXXXXXXXX. (53).  Officer XXXXXXXXXX testified that he responded to a traffic crash call. (55).  XXXXXXXXXX testified that he observed XXXXXXXXXX kneeling next to an overturned vehicle, crying and being assisted by paramedics.  XXXXXXXXXX testified that XXXXXXXXXX was apologizing and that he tried to pull himself up by the vehicle to get onto his feet. (55).  XXXXXXXXXX described XXXXXXXXXX as unsteady on his feet.  XXXXXXXXXX testified that XXXXXXXXXX received help from two firefighters in order to walk to a waiting ambulance.  XXXXXXXXXX was informed that Mr. XXXXXXXXXX would be transported to the hospital. (56).  The crash investigation ended and XXXXXXXXXX made contact with Mr. XXXXXXXXXX in the ambulance.  XXXXXXXXXX smelled alcohol and noticed other signs of impairment. (56-57).

Inside the ambulance, XXXXXXXXXX testified that he observed scrapes and scratches on XXXXXXXXXX.  However, he also noted that XXXXXXXXXX was not complaining of any injury.  XXXXXXXXXX believed that the medical treatment XXXXXXXXXX was receiving was “precautionary”. (R: 57).

There was a breath test machine in XXXXXXXXXX’s law enforcement vehicle which was at the scene.  XXXXXXXXXX is a breath test operator.  Prior to conducting a breath test, a twenty minute observation period is required. (58).  XXXXXXXXXX could have observed XXXXXXXXXX for twenty minutes while in the ambulance. (58).  XXXXXXXXXX did not offer XXXXXXXXXX a breath test because he assumed that the radio frequencies from the nearby emergency vehicles would interfere with the breath testing equipment. (59).  This was the case, according to XXXXXXXXXX, despite the fact that XXXXXXXXXX had parked his car “up into the city park right there to stay away from all the other vehicles.” (59).  XXXXXXXXXX assumed that XXXXXXXXXX would be unable to stand next to the law enforcement vehicle to provide a breath sample. (59).  XXXXXXXXXX additionally assumed that radio frequencies at the hospital would interfere with the breathalyzer at that location. (R: 62).

The State asked XXXXXXXXXX whether offering a breath test at the scene could have delayed XXXXXXXXXX receiving medical treatment. (R: 62).

XXXXXXXXXX requested paramedics in the ambulance obtain a blood draw which they performed. (62).  XXXXXXXXXX opined that giving a breath test was impractical or impossible based on the reasons he had stated and those reasons alone. (63).

On cross examination XXXXXXXXXX testified that taking the blood draw involved having the ambulance paramedics draw two vials of blood from XXXXXXXXXX; followed by obtaining the paramedics’ information and having the paramedics sign some documents. (64).  XXXXXXXXXX admitted that taking the blood draw in the ambulance delayed XXXXXXXXXX’s receipt of treatment for “a couple minutes”. (R: 64-65).

XXXXXXXXXX admitted that he never checked his breathalyzer machine to see if radio interference was actually detected at the scene. (R: 65).  XXXXXXXXXX confirmed that XXXXXXXXXX displayed no obvious signs of injuries. (67) XXXXXXXXXX confirmed that XXXXXXXXXX had, with the assistance of firemen, walked into the ambulance and that EMTs had not used a stretcher to place XXXXXXXXXX into the ambulance. (R: 67).

XXXXXXXXXX testified that his law enforcement vehicle was a “couple hundred feet away from the scene”. (68).   XXXXXXXXXX confirmed that he could have obtained a blood draw at the hospital if he had encountered radio frequency interference with his breathalyzer equipment at that location. (R: 69).  XXXXXXXXXX conceded that it was possible there existed a twenty minute period in which to observe XXXXXXXXXX inside of the ambulance at the scene. (70).

Following XXXXXXXXXX’s testimony, the State elected not to put on any additional testimony or evidence. (R: 71).

The county court confirmed that the issue centered on a voluntary blood draw as opposed to an involuntary blood draw which would involve serious bodily injuries. (71).  The county court and the attorneys agreed that the decision hinged  on whether or not the breath test was impractical or impossible. (73).  The county court expressed a concern about finding the breath test impractical or impossible based on the presence of other emergency vehicles. (75).  The county court inquired of the State as to what other factors made the breath test impractical or impossible.

The State argued that XXXXXXXXXX’s injuries and physical condition contributed to making the breath test impractical or impossible. (75).

The county court expressed a concern at the broad interpretation of impractical or impossible which was being suggested by the State. (76).  The county court noted that there are many cases where law enforcement officers arrive at an accident scene without serious injuries and encounter a situation with multiple emergency vehicles. (76).

The county court was concerned about how easy it would be to manufacture impractical conditions. (R: 78-79).  The State argued that a subject in an ambulance being prepped for transport always creates impracticable or impossible circumstances. (R: 79).  The county court expressed a concern that, using the State’s suggested analysis, Florida was simply going to become a blood draw state in all accident cases. (79).

Once again, the State argued that XXXXXXXXXX’s injuries were a factor in why the breath test was impractical or impossible. (86-87).

Defense counsel argued that a breath test would have been inconvenient but not impractical or impossible. (R: 88).

The State, for at least the third time, argued that XXXXXXXXXX’s injuries were a factor in the impracticability or impossibility analysis. (90).

The county court reviewed the language of the statute at the bench. (91).  The county court made a factual finding that the State had established inconvenience but that the State had failed to establish impracticality or impossibility. (R: 92); (R: 34).

Written order granting motion to suppress was entered. (32-34).  The State pursued an appeal to the circuit court. (35)

The State filed an Initial Brief in which it argued that XXXXXXXXXX’s injuries were serious and were a factor in why the breath test was impractical or impossible. (98; 107-108).  XXXXXXXXXX filed an Answer Brief. (121) The State filed a Reply Brief. (134).

About ten months after the Reply Brief was filed, the circuit court issued an opinion holding that the trial court had misapplied the law and reversed the county court’s ruling. (146-148).  The circuit court opinion held that the county court had engrafted the requirement of “serious bodily injury” into the impractical or impossible analysis. (147).  The circuit court opinion held that “[t]he facts of this case demand a legal conclusion that the breath test was impractical.” (147).  The circuit court opinion closed by holding as follows:

“On this factual record, the trial court erred in ruling that the breath test was

not impractical or impossible.” (148)

This timely petition follows.

III. NATURE OF THE RELIEF SOUGHT

Petitioner XXXXXXXXXX requests this court grant this petition and issue a writ of certiorari which quashes the appellate decision of the circuit court. Nucci v. Nucci, 987 So. 2d 135 (Fla. 2d DCA 2008).

IV. ARGUMENT AND SUPPORTING AUTHORITIES

standard of review

In considering a petition seeking review of an appellate decision of a circuit court the district court must determine whether the lower court afforded procedural due process and whether the circuit court applied the correct law.  These two components are merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

Where a circuit court impermissibly reweighs evidence, it departs from the essential requirements of law, and certiorari is available to an aggrieved party. Dade County v. Blumenthal, 675 So. 2d 598, 608-09 (Fla. 3d DCA 1995)( en banc).

 

impracticality or impossibility = background

Florida law allows for blood draws from only certain DUI suspects. (108).  At issue in this matter is section 316.1932(1)(c), Florida Statutes which allows for a blood draw when: an officer has probable cause to believe that the driver was impaired, and the driver appears for treatment at a medical facility (which includes an ambulance), and the administration of a breath or urine test is impractical or impossible. (109).

Court opinions exist which address a scenario in which a driver who does not seem to be seriously injured appears in a medical facility (including an ambulance) and is asked to provide a blood sample.  Some of those opinions favor a finding of impracticality or impossibility. (110).  Some of the opinions run to the contrary. State v. Morris, 12 Fla. L. Weekly Supp. 679 (Fla. 17th Cir. Ct. Sept 13, 2004); Curry v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 421 (Fla. 6th Cir. Ct. Nov. 22, 2004).  Despite the State’s protestations otherwise (79; 111-114; 139), the matter is a question of fact which has not been universally decided in favor of blood testing. (35).

The unique fact in this case, which separates it from all known similar opinions, is that the breathalyzer in this case was sitting unused only 200 feet from the scene. (68);(131-132).

 

impracticality or impossibility = factual determination

XXXXXXXXXX submits that a trial court’s determination regarding a breath test being impractical or impossible is a pure question of fact. See generally State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001).  While this specific issue appears to be a matter of first impression, XXXXXXXXXX submits that a trial court’s finding that a breath test was impractical or impossible is most akin to a finding of voluntariness of consent based on all of the surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973) (“Voluntariness [of a consent to search] is a question of fact to be determined from all the circumstances….”).  Whether or not facts exist which would make a breath test impractical or impossible is a pure question of fact.

As a ruling on a pure question of fact, the ruling must be sustained if supported by competent substantial evidence. Twilegar v. State, 42 So. 3d 177, 192(Fla. 2010). The circuit court opinion conceded that the county court’s ruling was supported by competent substantial evidence. (146).  Therefore the circuit court was bound to affirm the county court’s suppression order.

The State may argue that the impractical or impossible analysis is a mixed question of law and fact more akin to a trial court’s finding whether or not a suspect was in custody at the time a statement was given. (138); Ramirez v. State, 739 So. 2d 568, 574 (Fla.1999) (“The question of whether a suspect is in custody is a mixed question of law and fact.”).

If this were the case, absent any constitutional issue, the ruling likewise must be sustained when the trial court applied the right rule of law and its ruling is supported by competent substantial evidence. In re M.F., 770 So. 2d 1189, 1192 (Fla. 2000).  It bears repeating then, the circuit court opinion at issue conceded that the county court’s ruling was supported by competent substantial evidence. (146).  The appropriate law to be applied was Fla. Stat. § 316.1932(1)(c).  The law was explicitly reviewed, argued and applied both at the evidentiary hearing and in the written order. (71; 91; 32-34).  Therefore, even if the matter presents a mixed question of law and fact, the circuit court was required to affirm the county court’s order.

 

re-weighing the evidence

As recognized in State v. Kirby, 752 So. 2d 36, 37 (Fla. 5th DCA 2000):

An order of a county court comes to the circuit court with a presumption of correctness, and the circuit court must interpret the evidence in a manner most favorable to sustaining the trial judge’s ruling. Maurer v. State, 668 So. 2d 1077, 1078-79 (Fla. 5th DCA 1996) (county court is sole arbiter of credibility); Smiddy v. State, 627 So. 2d 1257, 1258 (Fla. 3d DCA 1993) (DCA reversed order of circuit court sitting in its review capacity; circuit court may not reweigh the evidence or substitute its judgment for that of the lower court).

 

Even if a circuit court, acting in its appellate capacity “merely reevaluate[s] the legal import of the evidence,” certiorari may issue where in so doing there is a material departure from the essential requirements of law.Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

A circuit court acting in its appellate capacity is not entitled to reweigh the evidence, but only to determine whether the trial court’s finding had the support of competent, substantial evidence. To do otherwise is to depart from the essential requirements of law. State v. Burke, 531 So. 2d 416, 418 (Fla. 4th DCA 1988).

This court has previously granted certiorari relief where a circuit court, sitting in its appellate capacity, improperly reweighed the evidence considered by a hearing officer at a license suspension hearing.Department of Safety & Motor Vehicles v. Marshall, 848 So. 2d 482, 485–86 (Fla. 1st DCA 2003).

By reweighing conflicting evidence, a circuit court applies the wrong standard of review, which is tantamount to departing from the essential requirements of law. See Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006); Mabrey v. Fla. Parole Com’n, 858 So. 2d 1176, 1183 (Fla. 2d DCA 2003).

As noted above, the circuit court opinion initially explicitly re-weighed the evidence in stating that “[t]he facts of this case demand a legal conclusion that the breath test was impractical.” (147).  Following this statement, the circuit court opines that XXXXXXXXXX’s physical condition required a finding that a breath test was impractical or impossible. (147-148).  The circuit court opinion concluded as follows: “On this factual record, the trial court erred in ruling that the breath test was not impractical or impossible.” (148).   The circuit court overtly based its decision on its own interpretation of the facts which runs counter to the interpretation of the county court.  Therefore the circuit court opinion represents a departure from the essential requirements of law and should be quashed. Weiss v. State, 965 So. 2d 842 (Fla. 4th DCA 2007).

claimed misapplication of the law

The circuit court opinion claims that the county court misapplied the law by engrafting a requirement of serious bodily injury into the impractical or impossible analysis. (147).  In attempting to support this claim, the circuit court opinion distinguishes one of the four opinions relied upon in the county court’s order.  XXXXXXXXXX disputes this claim.

As explained above, the circuit court should not have even reached that point as the county court’s determination involved a pure question of fact.  Even if the determination involved a mixed question of law and fact, the determination did not involve a constitutional issue such as probable cause or a consensual search. Therefore the competent substantial evidence standard applied. Connor v. State, 803 So. 2d 598, 605 (Fla. 2001).

During the county court proceedings the State attempted to rely on XXXXXXXXXX’s injury and/or his physical condition to establish that a breath test was impractical or impossible.  The State repeatedly argued that XXXXXXXXXX’s injuries were a central factor in the factual matter of whether the breath test was impractical or impossible.  This argument from the State was directly elicited during the officer’s testimony. (57; 62).    Additionally, the argument regarding XXXXXXXXXX’s injuries or physical condition was presented several times during the argument phase of the county court hearing. (75; 86-87; 90).  Even on appeal, the State continued to center its argument upon XXXXXXXXXX’s perceived injuries.  The record shows that the perceived injuries apparently did not exist. (107-108).

The State presented its argument to both courts below that XXXXXXXXXX’s injuries and physical condition created impractical or impossible conditions for a breath test.  The State essentially argued that the second prong of the test should meld with the third prong and that, where a subject appeared for treatment, a breath test was always impractical or impossible. (75; 79).  The county court was not swayed by this argument. (33).  The county court, upon hearing that no real injuries actually existed, simply discredited that portion of the State’s argument.  The county court’s being unimpressed with the State’s argument doesnot mean that the county court impermissibly engrafted a serious bodily injury requirement into its analysis. (33).  The county court order specifically addresses this scenario. (32-34).  Regardless of this dynamic, and in violation of the county court’s rightful role as the arbiter of fact and credibility, the circuit court held the county court was engrafting an extra requirement. (147).

The ironic aspect of this erroneous holding is that it was the State which raised the injury issue.  The discussion of injuries resulted from the parties and the court evaluating the State’s arguments.  Throughout the course of the trial proceedings the county court identified the correct statute to be used and the correct determination which needed to be made.  Nowhere in the county court’s written order or oral holding can a reader locate a requirement that serious bodily injury be present.

CONCLUSION

 

In conclusion, the county court’s ruling was supported by competent substantial evidence.  The circuit court impermissibly re-weighed the evidence in overturning the county court’s decision.  Any confusion resulting from the discussion of petitioner’s injuries was brought about by the State’s repeated argument and did not play any role in the county court’s factual analysis.  Certiorari lies to protect the autonomy of the only arbiter of fact and credibility; the county court.  This court should issue the requested writ of certiorari.

 

Respectfully submitted,

 

/s/ Luke Newman

______________________________

Luke Newman

Luke Newman, P.A.

908 Thomasville Road

Tallahassee, Florida 32303

850.224.4444 (phone)

850.224.9335 (fax)

Fla. Bar ID 0859281

luke@lukenewmanlaw.com

Counsel for Petitioner XXXXXXXXXX

 

 

 

 

 

CERTIFICATE OF SERVICE

 

          I hereby certify that a copy of foregoing (along with a copy of the appendix) has been provided to:

 

Office of the Attorney General

(sent via email to: criminalappealsintake@myfloridalegal.com)

 

Office of the State Attorney (hand delivery)

Leon County Courthouse

301 South Monroe Street

Tallahassee, Florida 32301

 

…on this twenty-second XXXX day of XXXXX, 2013.

 

/s/ Luke Newman                              

_____________________________

Luke Newman

Fla. Bar No. 0859281

 

CERTIFICATE OF COMPLIANCE

          Undersigned counsel hereby certifies that the instant petition complies with the font requirements of Florida Rule of Appellate Procedure 9.100(l).

/s/ Luke Newman                                        _________________________

Luke Newman

Fla. Bar No. 0859281