Florida DUI Case Law Update

Ben Fox Assistant State Attorney

Brevard County (FL)

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UPDATE TO DUI LAW MANUAL (4TH EDITION, REVISION 2.0, JUNE, 2010): APPELLATE CASES DECIDED BETWEEN

JUNE, 2010 AND JUNE 1, 2019

By Ben Fox, Assistant State Attorney, Brevard County, 18th Judicial Circuit*

INTRODUCTION This year’s Update continues to utilize the format of the last five years by conforming to the Chapter and Topic format of this author’s DUI Law Manual, rather than listing cases in chronological order as in the 2011-2014 Updates. That is, a Table of Contents in this format is provided; it lists the Chapters and Topics applicable to the appellate cases which have been decided since the Manual was last revised in June of 2010. This procedure is intended to make it easier for the reader to follow up on case law presented in the Manual and to be fully up to date on the current state of DUI law. Some of the cases contained in this Update have caused new topics to be created since the time of the Manual; such new topics are noted in this Update, beginning with the Table of Contents. Under this format, appellate cases added since the last Update of May 1, 2018 are located throughout this Update, rather than at the end of the Update as in the 2011-2014 Updates (although the latest cases will tend to be at the end of a discussion of any given topic). In order to help the reader locate the new cases from within the past year, a “Table of Cases Added Since May 1, 2018 Update” is also included, just after the Table of Contents. Additionally, new case cites added since the last Update are listed in red italics and contain the full date of the decision rather than just the year of the decision. Finally, in order to help the reader locate the new topics in this Update, any topics that were not previously listed either in the Manual or in previous Updates (or any topics that were listed in the Manual but did not give rise to any DUI case law regarding that topic until this year’s Update) are also listed in red italics. This author is now confident that with the help of Assistant State Attorney Garett Berman of the Seventeenth Circuit, a revised (fifth) edition of the DUI Law Manual will be prepared in the near future – hopefully before the end of 2019 – which will save the reader from having to utilize the current bifurcated procedure. *I would like to convey my appreciation of Assistant State Attorney Aaron W. Hubbard of the 13th Judicial Circuit for authorizing the use of his Florida Law Weekly Summaries which I utilized to identify current case law relating to pertinent search and seizure cases.

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TABLE OF CONTENTS

TABLE OF CASES ADDED SINCE MAY 1, 2018 DUI LAW UPDATE……viii

CHAPTER I: DUI Elements and Definitions (etc.)………………....1 F. “Actual Physical Control”...................................................................................1 G. “Impaired”……………………………………………………………………...2

1. Definition of “Impaired”…………………………………………………….2

3. Presumptions of impairment; Prima facie evidence of impairment………....2

Q. DUI Accidents ....................................................................................................3

1. DUI Manslaughter; Causation Issues.............................................................3

S. Applicable Defenses in DUI Prosecutions...........................................................4 4. Necessity (new topic)………………………………………………………...4 T. Substantive Crime of Criminal (Second) Refusal (including the new topics of the impact of Birchfield on section 316.1939 and the impact of rule 3.151 on filing a Refusal charge after a DUI trial)………….................................................5 U. BUI Elements; “Vessel” (new topic)………………………………………….9 CHAPTER II: Initial Contact with DUI Suspect (Vehicle Stops)...10 A. “Stops” vs. “Encounters”……………………………………………………..10 B. Stops Based on Crimes: Reasonable Suspicion is the Standard ......................11 C. “Pre-Textual” Stops ..........................................................................................11

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E. Traffic Stops: A Comprehensive Argument to Support the Contention that the Standard to Stop a Vehicle for a Non-Criminal Traffic Violation is Reasonable Suspicion ………….………………………………………………...12 F. Stops Based on Observations by “Fellow Officer”...........................................14

G. Unusual Driving/Suspicion of Impairment (and “Community Caretaking”)...16

H. Failure to Maintain Single Lane, F.S. 316.089(1)……………………………18

I. Driving on the Wrong Side of the Road, F.S. 316.081(1)……………………19

J. Officer Outside His or Her Jurisdiction ............................................................19

2. Citizen's Arrest…..........................................................................................19

K. Stops Based on "Tips" of Erratic Driving or Drunk Driving – and new topic of stops based on tips of other circumstances leading to a DUI investigation……...21 M. Stops Based on Teletype Information that Registered Owner of Vehicle has Suspended License…..…………………………………………………….....31 N. Stops Based on Erroneous Information Supplied by DHSMV...................... 32

R. Stops Based on a “Mistake of Fact” or “Mistake of Law” ………………….33

V. Stops Based on Improper Left turn (new topic)………………......................37

W. Stops Based on Excessive Noise Statute (new topic)………..........................37

X. Stops Based on Rearview or Sideview Mirror Violation (new topic)……….38

Y. Stops Based on Window Tint Violation (new topic)…..................................38

Z. Stops Based on Fleeing or Eluding Offense (new topic)………....................38

AA. Stops Based on Speeding Violation (new topic)………………..................39

BB. Stops Based on Slow Speed/Impeding Traffic (new topic)………………...39

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CC. Stops Based on Driving Without Headlights Activated (new topic)….…...40

DD. Stops Based on Failing to Stop at Stop Line at Stop Sign (new topic)….....40 EE. Stops Based on Discrepancy in Color of Vehicle with Color Indicated in Registration (new topic)…………………………………………………………..41 FF. Stops Based on Driving or Passing on Left Side of the Roadway in No-Passing Zone (new topic)………………………………………………….....42 GG. Stops Based on Obscured License Tag (new topic)………………………..43

1. Matters external to the tag (e.g., trailer hitch, bicycle rack, dirty rag, or wires hanging from the tag light)…………………………43

2. License plate frames which obscure the word “Florida” or other words on the tag (new sub-topic)……………………………………………..44

HH. Stops Based on Improper Entry of Vehicles onto Adjacent Highways from Adjoining Business Locations and Parking Lots (new topic)………….………...49 II. Stops Based on Careless Driving (new topic)………………………………..51 JJ. Stops Based on Observations of Impairment from Earlier that Night or Morning Even Though No Improper Driving Currently Observed (new topic)…51 CHAPTER III: Observations and Statements at the Scene.............52

B. The Effect of the Miranda “Custodial Interrogation” Doctrine on Observations and Statements at the Scene — Basic Propositions.........................52 C. The Effect of the Miranda “Custodial Interrogation” Doctrine on Observations and Statements at the Scene — Complicating Factors ...................52

3. The Impact of the "Confusion Doctrine" on the issue of when to provide Miranda warnings..............................................................................................52

D. Corpus Delicti ..................................................................................................54

E. Accident Report Privilege.................................................................................56

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CHAPTER IV: Field Sobriety Tests...................................................56

A. The Requisite Legal Standards for Detaining a Suspect in Order to Conduct a DUI Investigation or to Administer (Require) Field Sobriety Tests……………56

1. Reasonable Suspicion to Conduct Further Investigation .............................56

C. Refusal to Participate in Field Sobriety Tests…………………………………59 F. Field Sobriety Tests and the “Scientific Reliability” Issue (including the HGN and DRE Issues) ..........................................................................................59 G. Field Sobriety Tests and Interactions on Videotapes (new topic)....................59

CHAPTER V: Custody and Arrest Issues…………………..60 A. Validity of DUI Arrest………………………………………………...60

1. Probable Cause..…………………………………………………………...60 CHAPTER VI: Scientific Evidence.....................................................60 B. Breath Tests .......................................................................................................60 1. Implied Consent Law. . . allegedly improper warnings……………………..60 2. Implied Consent Law; administrative driver’s license suspension hearings ..............................................................................................................61

3. Consequences of breath test refusal ………………………………………..69 5. FDLE rules; predicate for admissibility of breath tests…………………......69 11. The post-Muldowney search for the “source code” and other “full information”................................................................................................72 16. Low sample volume/volume not met: “valid” breath test vs. refusal (new topic)...........................................................................................................73

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17. Are search warrants required in breath test cases? (new topic)..…...............75 C. Urine Tests…………………………………………………………………......81

1. Are search warrants required in urine test cases? (new topic)..…................81 D. Blood Tests (“Legal Blood”) .............................................................................82

1. Implied Consent Law.....................................................................................82

2. FDLE rules; predicate for admissibility of blood tests; substantial compliance………………………………………………………………......74

4. Serious bodily injury or death cases; probable cause to draw blood (includes new topic of probable cause based on fellow officer rule).................................83

5. Attack on HRS/FDLE rules relating to blood tests………………………….90 8. Consent .........................................................................................................91 10. Standard for trial court to review motions to suppress (new topic)………..95 11. Availability of search warrants to obtain DUI blood draw (new topic)…..95 12. Are search warrants required in order to obtain blood draws? (new topic) 98

13. The impact of McNeely/Birchfield on Florida’s Implied Consent Law as applied to unconscious defendants (new topic)…………………………...109

14. Standard of review for appellate courts on appeal of suppression rulings or on certiorari review of DHSMV administrative hearings (new topic)........111

15. The meaning of the term “the administration of a breath or urine test is impractical or impossible” in F.S. 316.1932(1)(c) (new topic)……………118

F. Medical Blood ……………..............................................................................120 G. Independent Blood Tests …………….............................................................121

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CHAPTER VII: Judgment of Acquittal...........................................122

C. The Standard as Applied to DUI Manslaughter Cases (new topic) ................122

(No cases pertaining to CHAPTER VIII)

CHAPTER IX: Sentencing ...............................................................123

A. Mandatory and Maximum Penalties ...............................................................123

E. The Alleged Involuntariness of a DUI Plea when a Defendant is Not Advised of Potential Administrative Driver’s License Suspension Consequences............123 G. Downward Departures from the Criminal Punishment Code .........................124 K. Other Enhancement Issues...............................................................................125 2. Use of uncounseled prior DUI to enhance current DUI offense to Felony DUI …………………………………………………………………...125 L. Admissibility of Hearsay in Sentencing Hearings (New Topic)……………...126 CHAPTER X: Miscellaneous Issues ................................................126 A. Double Jeopardy ............................................................................................126 B. Due Process………………………………………………………………….134 G. Discovery/Richardson Issues..........................................................................134 H. Speedy Trial Issues .........................................................................................134

K. Improper Closing Argument............................................................................137

M. Evidentiary Issues ..........................................................................................138

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S. Felony DWLS as H.O (new topic)...................................................................140 T. Statute of Limitations (new topic)...................................................................140 U. Trial Court Jurisdiction after Notice of Appeal is Filed (New Topic)………141 V. Is a search warrant required to download data from the “event data recorder” or “black box” located in an impounded vehicle? (new topic)............................141

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TABLE OF CASES ADDED SINCE MAY 1, 2018 DUI LAW UPDATE

Berrocales v. State, 2019 WL 384961 (Fla. 4th DCA Jan. 30, 2019).……….….123

Bedell v. State, 250 So.3d 146 (Fla. 1st DCA May 31, 2018)……………….82, 118

DHSMV v. Davis, 264 So.3d 965 (Fla. 4th DCA Feb. 13, 2019)…………………94

Gomillion v. State, 267 So.3d 502 (Fla. 2d DCA March 20, 2019))………….....121 Howitt v. State, 266 So.3d 219 (Fla. 5th DCA February 8, 2019)……………59, 69 Martinez v. State, 265 So.3d 704 (Fla. 4th DCA Feb. 27, 2019)……………….139 Miller v. State, 250 So.3d 144 (Fla. 1st DCA May 25, 2018)……………………94 Peterson v. State, 264 So.3d 1183 (Fla. 2d DCA March 6, 2019)……………….18 State v. Boston, 267 So.3d 463 (Fla. 2d DCA Jan. 18, 2019)………………........19 State v. Fonseca, 264 So.3d 193 (Fla. 4th DCA Jan. 23, 2019)…………………55 State v. Morris, 2019 WL 1781683 (Fla. 4th DCA April 24, 2019)…………….48 State v. Myers, 261 So.3d 573 (Fla. 4th DCA Nov. 28, 2018)…………………..93 State v. Pena, 247 So.3d 61 (Fla. 3d DCA May 9, 2018)………………………45 State v. Wilson, 2019 WL 1715731 (Fla. 5th DCA April 18, 2019)…………….19 Young v. State, 2019 WL 1524835 (Fla. 1st DCA April 9, 2019)……………….52

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CHAPTER I: DUI Elements and Definitions (etc.) G. Actual Physical Control State v. Fitzgerald, 63 So.3d 75 (Fla. 2d DCA 2011): Court found that State could prove actual physical control where officer found intoxicated defendant sitting in driver’s seat of a car parked in an intersection with headlights on, driver’s door open, engine not running, and defendant had keys in her right hand when first observed by officer. Court stated: “The circuit court’s focus on whether the State could prove that Fitzgerald drove the car to the location of her encounter with the officer overlooked that the statute is just as concerned about the driver's ability to drive the car from there. The legislature defined the crime to include not only driving but also actual physical control ‘to enable the drunken driver to be apprehended before he strikes.’ ” 63 So.3d at 77, quoting Griffin v. State, 457 So.2d 1070, 1072 (Fla. 2d DCA 1984). Court noted also that as in DHSMV v. Prue, 701 So.2d 637 (Fla. 2d DCA 1997), the keys to the car were readily available to defendant and she could have used them to start the car and drive away. McCoskey v. State, 76 So.3d 1012 (Fla. 1st DCA 2011): Here, Court found that State’s motion in limine to preclude any testimony “concerning the defendant contacting other people for him to get a ride home, that this was a usual arrangement, and/or that he was just waiting in the car until his ride came. . .” should have been granted by county court and therefore circuit court was correct for reversing county court’s ruling. Court explained that intent to operate a motor vehicle is not an element of the charge of DUI, nor is lack of intent to operate a motor vehicle a legally cognizable defense to DUI. As to the issue of actual physical control, Court stated:

Moreover, the evidence Petitioner sought to admit (that he had called for a ride and was waiting, in his car with the radio on, for that ride at the time of his arrest) is irrelevant to whether or not petitioner committed DUI – specifically, the “actual physical control” requirement. See § 90.401, Fla. Stat. (2010) (defining relevant evidence as “evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings”). Evidence of Petitioner's alleged lack of intent to drive would not operate to prove or disprove whether the petitioner was in “actual physical control” of his vehicle. In fact, such irrelevant speculation regarding the Petitioner's subjective intentions would only serve to do one of three things: (1) confuse the jury; (2) lead the jury to believe that “intent” is an element of the crime of DUI; and/or (3) create sympathy for the petitioner, possibly resulting in a jury pardon.

76 So.3d at 1014.

In re: Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016): In this Opinion, the Florida Supreme Court adopted proposed amendments to the standard jury instructions relating to criminal traffic offenses (both misdemeanor and felony). The proposed amendments were submitted nearly a year before in a report (No. 2015-07) prepared by the committee of which the undersigned author, at the time, was a member (the Supreme Court Committee on Standard Jury Instructions in Criminal Cases). The Opinion contains an Appendix which reflects the changes made. The changes have now been incorporated into the Florida Supreme Court Standard Jury Instructions website. There were three substantive amendments made to the DUI jury instructions.

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One of these amendments pertained to the definition of “actual physical control.” Specifically, the following note was added to the definition of “actual physical control” in DUI cases: “The option of ‘on a vehicle’ pertains to vehicles such as motorcycles and bicycles.” (See Appendix to the Opinion at pages 7, 11, 14, & 19.) Note that “actual physical control” is not applicable to BUI cases. G. “Impaired”

1. Definition of “Impaired” In re: Standard Jury Instructions in Criminal Cases—Report No 2015-07, 2016 WL 2757011 (Fla. 2016): An introductory explanation of this Opinion is contained above under the category of “Actual Physical Control” on page 1 of this Update. As noted therein, there were three substantive amendments made to the DUI jury instructions. One of these amendments created a specific definition for “impaired,” which is: “Impaired means diminished in some material respect.” See Appendix to the Opinion at page 7 (pertaining to Instruction 28.1 (DUI) – the definition applies to the other DUI offenses as well as to the corresponding BUI offenses. As noted in the Appendix to the Opinion, this definition for “impaired” is taken from Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). While this is not necessarily an ideal definition (for reasons explained in this author’s DUI Law Manual at page 30), I agreed with the other members of the Committee that the definition provided in Shaw was the only one existing in Florida appellate law – the Committee can only implement or amend instructions that are authorized by law; it cannot change instructions to suit what the Committee believes the law ought to be. And because “impaired” is a term which is not readily used in everyday conversation, having this definition is clearly superior to leaving the meaning up to the jury. 3. Presumptions of impairment; Prima facie evidence of impairment In re: Standard Jury Instructions in Criminal Cases—Report No. 2015-07, 192 So.3d 1190 (Fla. 2016): An introductory explanation of this Opinion is contained above under the category of “Actual Physical Control” on page 1 of this Update. As noted therein, there were three substantive amendments made to the DUI jury instructions. The most significant amendment made to the DUI (and BUI) jury instructions relates to the third of the three standard jury instructions pertaining to the “presumptions of impairment.” As a reminder, the first of the three presumption instructions (which was unaffected by the amendment) tells the jury to presume non-impairment in cases in which the jury finds that the defendant had a breath or blood alcohol level below .05 at the time of driving (or operating in BUI cases); it also states that the presumption may be overcome by other evidence of impairment. The second instruction (also unaffected by the amendment) tells the jury there is no presumption either way in cases where the jury finds that the level was over .05 but less than .08 at the time of driving.

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The third instruction (pre-amendment) tells the jury that if they find that the defendant had a breath or blood alcohol level of .08 or more at the time of driving, then that evidence would be sufficient by itself to establish that the defendant’s normal faculties were impaired (i.e., it creates an inference of impairment) but that such evidence could be contradicted or rebutted by other evidence. I have always maintained that this third presumption instruction became outdated and confusing once the crimes of DUI and DUBAL were consolidated into the one offense of DUI in 1982. The reason for this is fully explained in the DUI Law Manual at page 34, but basically the third presumption is moot because, as stated in Euceda v. State, 711 So.2d 122, 124 (Fla. 3d DCA 1998): “Having the unlawful blood alcohol level is itself the offense.” In 2015, after I became a member of the Standard Jury Instructions Committee, Brevard County ASA George Gaspard proposed an amendment to resolve this presumption problem and I took his proposal to the Committee. After some modifications were made, the Committee voted unanimously to recommend the proposed amendment, and this Opinion adopted the amendment. The amendment eliminated the presumption of impairment instruction in cases where the State has charged the defendant with driving with a blood or breath alcohol level of .08 or above. In place of the now discarded instruction regarding the third presumption, the new instruction contains a note for the trial judge (and for the parties as well) which states:

It is not necessary to instruct on the “prima facie evidence of impairment” in § 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot.; Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001).

(Page 8 of Appendix to Opinion, pertaining to Instruction 28.1 (DUI)). The same note also appears in the other DUI Instructions as well as in the corresponding instructions in BUI cases.

Q. DUI Accidents

1. DUI Manslaughter; Causation Issues

Edwards v. State, 39 So.3d 447 (Fla. 4th DCA 2010): This was a DUI Manslaughter case arising from a collision at an intersection between Defendant’s vehicle and another vehicle in which the passenger was killed. Trial court granted State’s motion in limine to exclude proposed testimony by defense toxicologist that driver of other vehicle was also impaired. Fourth District Court agreed that such testimony was not relevant to the material fact in dispute, i.e., who had the green light. Court held that the evidence as to who had green light was supplied by eyewitnesses (all of whom testified that driver of other vehicle had green light – although a statement that defendant made to officer on night of crash that he had green light was also introduced during State’s case), the physical evidence from the accident reconstruction, and the surveillance camera at the intersection. However, the Court did announce the following caveat:

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We are unwilling to say that another driver's intoxication could never be relevant in the prosecution of a defendant for DUI manslaughter. For example, if the only evidence in this case as to who had the green light were Rosa's testimony [i.e., the testimony of the driver of other vehicle who survived] and Edwards’s exculpatory statement, the evidence of Rosa’s alcohol consumption may have been relevant, because Rosa’s own perception may have been affected by it. Here, however, because there was ample, independent evidence other than Rosa's testimony, even if the evidence of Rosa's alcohol consumption were relevant, we would conclude its exclusion was harmless error.

39 So.3d at 449. Pennington v. State, 100 So.3d 193 (Fla. 5th DCA 2012): DUI Manslaughter case with collision between sport utility vehicle and motorcycle with no witnesses to the collision. Based on motorcycle tire tracks over the top of the SUV and the damage to the motorcycle, it was evident that the motorcycle had ridden up and over the top of the SUV. Due to lack of damage to the front forks of the motorcycle, but extensive damage to the undercarriage, the State's expert believed that there were two possible explanations: (1) the motorcycle was in the wheelie position where the headlight would have been pointing up and thus the defendant would never have seen it (and then would not be the cause of the death) or (2) the motorcycle hit the front tire of the SUV and then launched onto the SUV – however, if that had happened, he would expect to see damage to the front tire of the SUV and there was none. The defendant's expert determined that the motorcycle had been in the wheelie position. Defense moved for judgment of acquittal based on the case being a circumstantial evidence case and the State's inability to disprove the defendant's reasonable hypothesis of innocence, that the motorcycle had been in the wheelie position, and that even a sober person would not have seen the victim and avoid the accident. The trial court denied the motion for JOA but the Appellate Court reserved. The Court stated: “The insurmountable problem for the State is that it adduced not a single shred of evidence that was inconsistent with the defense theory. The State's witnesses could not rule out that the motorcycle was in wheelie position and the physical evidence was wholly consistent with that theory and that theory alone.” S. Applicable Defenses in DUI Prosecutions

4. Necessity (new topic)

Brooks v. State, 122 So.3d 418 (Fla. 2d DCA 2013): In this case, the defendant was charged with and convicted of Felony DUI (third offense within 10 years of a prior DUI conviction). His argument on appeal was that the trial judge improperly denied his request for a special jury instruction on the defense of necessity. That is, he admitted to being impaired but he argued that circumstances compelled him to take to the highway. Specifically, his defense was that his friend’s cat was sick, and he was the only person available who could transport the cat to an all-night veterinary clinic for treatment. Although his defense was unusual, he presented some evidence to support it. He was transporting a cat, and the cat was very ill. There is a veterinary clinic near the highway exit where the deputy stopped the defendant. The cat’s owner and two of his acquaintances were passengers in defendant’s car. One of these persons was apparently giving the defendant directions to the clinic when the deputy stopped his vehicle. While the

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defendant explained the unusual circumstances of his errand to the deputy, the cat's owner pleaded, “My cat is fixing to die!” In fact, the cat did die, during or shortly after the vehicle stop that resulted in the defendant’s arrest. On appeal, the Court surveyed the law in other states and in the circuit courts of Florida, and concluded that the defense of necessity is available in Florida to a DUI charge. However, the Court found that the trial court correctly denied the requested instruction under the circumstances of this case. This was because the first of the five elements of the necessity defense requires that the defendant reasonably believe that his action was necessary to avoid an imminent threat of danger or serious bodily injury to himself or others. The Court concluded that the phrase “or others” did not apply to animals. Further, the words of paragraph 2 of the standard jury instruction on the defense of necessity contemplate an emergency threatening significant harm to the defendant or to “a third person.” See Fla. Std. Jury Instr. (Crim.) 3.6(k). Although the Court indicated that the defendant’s wish to obtain treatment for the ailing feline was understandable, the elements of the defense and the plain language of the jury instruction compelled the Court to conclude that a claim of necessity is not available as a defense to a DUI charge in Florida when the asserted emergency involves the threat of harm to an animal instead of a person. T. Substantive Crime of Criminal (Second) Refusal (including the new topics of the impact of Birchfield on section 316.1939 and the impact of rule 3.151 on filing a Refusal charge after a DUI trial) Allen v. State, 125 So. 3d 191 (Fla. 4th DCA 2013): This case demonstrates that as a general rule, a Refusal to Submit to Testing charge should not be joined or consolidated with a DUI charge in the same trial. This is because, as noted by the Court regarding the dangers of possible improper consolidations, “evidence relating to each of the crimes may have the effect of bolstering the proof of the other.” 125 So.3d at 192, quoting Dupree v. State, 705 So.2d 90, 95 (Fla. 4th DCA 1998), citing Crossley v. State, 596 So.2d 447, 450 (Fla.1992). Here, Defendant was charged with Felony DUI (three priors) and Refusal to Submit to Testing and both charges were tried before the same jury. Defendant was convicted on both counts. Defendant did not take a direct appeal but instead brought a post-conviction motion, alleging that his trial counsel was ineffective for failure to sever the charges. Specifically, Defendant argued that such failure was tantamount to informing the jury that defendant had a prior DUI, because the predicate for the refusal charge was a prior refusal. Because Defendant did not have a direct appeal, the record did not contain a transcript of the trial. Accordingly, the state conceded at the lower court level that it could not determine whether Defendant's trial counsel had made a strategic decision not to request severance of the refusal charge from the DUI charge; thus the State conceded that an evidentiary hearing was needed on this ground for relief. The trial court rejected the State’s concession. The trial court referred to a “pros and cons” list which Defendant had attached to his post-conviction motion as exhibit A; this list included, as a negative on the issue of whether to go to trial or not, that “jury will know priors b/c felony count.” Based on this attachment, the trial court found that trial counsel considered severing the counts but took the strategic course of rejecting doing so.

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The Fifth District Court of Appeal disagreed. It found that trial counsel’s failure to sever the counts was a facially sufficient ground for relief and remanded for either the attachment of additional portions of the record conclusively refuting the claim or for an evidentiary hearing. The Court referred to the standard jury instructions in a Felony DUI case, “which provides that the jury first is instructed on the elements of DUI; then, if it finds the defendant guilty, the jury is required to determine, in a bifurcated procedure, whether the state proved the prior convictions.” 125 So.3d at 193. (Bold emphasis by the Court). The Court also cited to Johnson v. State, 14 So.3d 1282, 1283 (Fla. 2d DCA 2009), which had reversed in part a summary denial of a rule 3.850 motion involving the failure to sever DUI counts from driving on a suspended license counts, which caused the jury to be confronted with that defendant’s driving history. This ruling is consistent with general post-conviction case law. See, e.g., Sampson v. State, 751 So.2d 602, 602 (Fla. 2d DCA 1998) (“To conclude that an action or inaction taken by a trial attorney was a strategic decision generally requires an evidentiary hearing.”). Thus, whenever a Defendant agrees to try a DUI and Prior Refusal in the same case, prosecutors should insist that the Defense announce on the record their strategic decision for doing so – otherwise, the State should not agree to such a trial. That is, prosecutors should request that the Defense state on the record that they were aware of the problem of a jury finding out about a prior DUI but that they chose to go forward anyway, usually because they didn’t want to give the State two separate trial chances to convict the Defendant – and it would be even better to have the Defendant announce his agreement with this strategy. This procedure would avoid a later claim of ineffective assistance of counsel because the record would then conclusively refute the ineffective assistance claim. See, e.g., Jackson v. State, 975 So.2d 485, 486 (Fla. 2d DCA 2007) (“an evidentiary hearing is not required when it is obvious from the record that counsel’s decision was strategic”). Williams v. State, 210 So.3d 774 (Fla. 5th DCA 2017): This case was originally decided by the Fifth District Court of Appeal in Williams v. State, 167 So.3d 483 (Fla. 5th DCA 2015). At that time, the Court addressed a certified question involving a challenge to section 316.1939 arising out of a prosecution for refusing to submit to a warrantless breath test. The challenge was based on a combination of Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) and the “unconstitutional conditions” doctrine. The Fifth District rejected this challenge and found the statute constitutional. The Court determined that a warrantless post-arrest breath test was permissible under the Fourth Amendment based on a “general reasonableness” theory. Note that because the case involved a refusal to submit to a breath test, the Court did not address whether the statute is unconstitutional in the context of a blood or urine test. About one year after the Fifth District decided its original Williams case, the United States Supreme Court decided the case of Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield held, among other things, that a breath test administered without a warrant is permissible as a search incident to a lawful arrest for DUI and therefore a person could be constitutionally prosecuted for refusing to submit to a warrantless breath test. Thus Birchfield effectively approved the result in Williams but under a different (and more traditional) theory. Note, however, that Birchfield reached a different result with regard to the crime of refusing a blood test, finding that the search incident to arrest exception did not apply to blood tests. Birchfield did not address the issue of the crime of refusing a urine test.

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About five months after Birchfield was decided, the Florida Supreme Court in Williams v. State, 2016 WL 6637817 (Fla. Nov. 9, 2016) vacated the Fifth District’s Williams decision and remanded the case back to the Fifth District for reconsideration in light of Birchfield. On remand, the Fifth District again upheld the constitutionality of section 316.1939. This time, the Court adopted the holding in Birchfield that breath-alcohol tests are permissible under the search incident to arrest exception to the Fourth Amendment’s warrant requirement. 210 So.3d at 776. Recognizing that the search incident to arrest theory in Birchfield was limited to warrantless breath tests, the Fifth District provided the following footnote:

Although the certified question tracks the statutory language by including blood and urine tests as well as breath tests, Williams challenges the statute solely as applied to his refusal to submit charge. It is undisputed that Williams was only asked to undergo a breath test, so we need not address the legality of blood and urine tests. We note, however, that the United States Supreme Court’s decision in Birchfield makes clear that blood and urine tests raise more substantial privacy concerns and are not subject to the search-incident-to-arrest exception to the Fourth Amendment's general warrant requirement. See Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (2016).

Id. at n.1. (Emphasis added). Actually, with regard to the search incident to arrest exception, the Birchfield Court explicitly stated only that this exception did not apply to blood tests. The Birchfield Court did not address urine tests at all, except to state that “urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one.” 136 S.Ct. at 2168, n.1. In any event, the issue regarding whether a criminal prosecution of a refusal to submit a warrantless urine test survives constitutional scrutiny will likely depend on whether the Courts view the intrusiveness of a urine test as more akin to a blood test (intrusive) or a breath test (not intrusive). Although the Fifth District misspoke as to what the Birchfield Court said about urine tests, the above-quoted dictum provides the first indication by a Florida appellate court (but not at all a conclusive one) of how this issue will be decided. For a more complete discussion of Williams and Birchfield, see the discussion of those cases within the topic “Are search warrants required in breath test cases?” at pages 75-80 of this Update, and see the discussion of the topic “Are search warrants required in order to obtain blood draws?” at pages 98-109 of this Update.) State v. Hamilton, 210 So.3d 776 (Fla. 2d DCA 2017): In this case, the State went to trial on a DUI charge and the jury returned a not guilty verdict. The following day, the State charged the defendant with refusing to submit to a breath test. The defendant moved to dismiss the refusal charge pursuant to Fla. R. Cr. P. rule 3.151(c) (titled “Dismissal of Related Offenses after Trial”). The Defendant argued that the offenses underlying the refusal charge and the DUI charge were “related” as that term is defined in the rule; that the State’s prosecution of the DUI demonstrated that it would have been able, by due diligence, to obtain sufficient evidence to warrant charging the refusal; and therefore, under the rule, the newly filed charge must be dismissed. The county court denied the motion. The defendant then petitioned for a writ of prohibition and requested the circuit court to bar prosecution on the refusal charge either pursuant to rule 3.151, or, alternatively, because it would constitute double jeopardy. The circuit

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court rejected Mr. Hamilton’s double-jeopardy argument but granted the petition based on its conclusion that the DUI and the refusal were related offenses under rule 3.151(a). The circuit court, however, did not address the threshold question of whether prohibition was available to preclude prosecution under rule 3.151(c). The State then sought second-tier certiorari review of the circuit court’s order and the Second District Court of Appeal granted the State’s Petition. The Court initially noted that a writ of prohibition is an extraordinary remedy that “may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction.” 210 So.3d at 779, quoting English v. McCrary, 348 So.2d 293, 296 (Fla. 1977). The Court then explained:

. . . [A]fter rejecting the merits of Mr. Hamilton’s double-jeopardy argument, the circuit court addressed the merits of his rule 3.151 argument without first considering whether rule 3.151 implicates the county court’s jurisdiction to entertain his prosecution on the refusal charge. And, in short, it does not. See Von Deck v. Evander, 622 So.2d 1160, 1162 (Fla. 5th DCA 1993) (“Rule 3.151(c) provides for dismissal of related offenses not consolidated for trial; however, this procedural rule does not invoke double jeopardy concerns.... An allegedly erroneous denial of a rule 3.151(c) motion to dismiss does not affect the trial court’s subject matter jurisdiction as does the erroneous denial of a motion to dismiss based on double jeopardy grounds.”). . . .

Id. The Court added:

Furthermore, this violation resulted in a miscarriage of justice. See id. First, the erroneous grant of prohibition impermissibly infringed on the county court’s lawful exercise of its jurisdiction, as defined by statute pursuant to article V, section 6(b), of the Florida Constitution. See § 34.01(1)(a), Fla. Stat. (2013) (vesting county courts with original jurisdiction over “all misdemeanor cases not cognizable by the circuit courts”). Moreover, it wholly negated the State’s ability to proceed with its prosecution and left the State with no other avenue for review. . . .

Id. at 779-780. Note that the Second DCA’s opinion does not state why the county court denied the defendant’s motion to dismiss. But prosecutors need to be aware that unless there was a good explanation for the county court’s ruling, such a motion would normally be well-taken, based on the explicit language of rule 3.151(c). Thus, while the State prevailed in pursuing the Refusal charge in this case based on the legal requirements of prohibition, the State would likely have lost on direct appeal had the case proceeded to trial. Accordingly, prosecutors normally need to have a Refusal charge filed before going to trial on a DUI (assuming there is sufficient evidence to file it). If the defendant then moves to sever the charges (which motion should normally be granted), rule 3.151(c) treats such motion as a waiver of the right to dismiss rule 3.151. (The opinion here indicates that the Refusal charge had not been filed when the DUI case went to trial so that could not have been the basis of the country court’s denial of the defendant’s motion to dismiss.)

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U. BUI Elements; “Vessel” (new topic) State v. Davis, 110 So.3d 27 (Fla. 2d DCA 2013): In this case, a defendant charged with Felony Boating Under the Influence made the novel but clever argument that the State had failed to prove that the boat he operated was “subject to a license tax for operation” and therefore he could not be convicted of BUI. Specifically, he argued that (1) an element of BUI is that the instruction (28.14) as “a boat that is subject to a license tax for operation and includes every description of watercraft, barge, and airboat, other than a seaplane, on the water used or capable of being used as a means of transportation on the water;” and (3) the State failed to present any evidence that the boat was subject to a license tax for operation. The trial court granted a judgment notwithstanding verdict based on this argument but the Second District Court of Appeal reversed. Although the Court acknowledged that the definition in the jury instruction did include reference to a boat that is subject to the license tax, it also noted that the relevant statute, section 327.02(39), did not specifically define “vessel” as being subject to such a tax. Rather, the term “vessel” is defined in the statute as being “synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution” and section (1)(b) of article VII of the Florida Constitution provides in relevant part that “boats ..., as defined by law, shall be subject to a license tax for their operation in the amounts and for the purposes prescribed by law, but shall not be subject to ad valorem taxes and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.” 110 So.3d at 30. (Emphasis added). The Court then reasoned as follows:

While we do not ignore the reference in section (1)(b) of article VII of the Florida Constitution to a boat's being subject to a license tax, we do not believe that the phrase as expressed in the constitution is an element of the crime of BUI. Article VII deals solely with finance and taxation matters, not with the definition of crimes. We note too that in 1999, the legislature added chapter 328 which addresses vessel registration requirements. In doing so, the legislature also modified the name of chapter 327 to “Florida Vessel Safety Law” and moved the provisions relating to registration requirements to chapter 328. See Ch. 99–289, §§ 1–37, at 3190–3211, Laws of Fla. The fact that the legislature separated the registration requirements from the provisions relating to boating safety issues suggests to us that the legislature did not intend for a boat's registration status to dictate whether its operator could be charged with BUI. . . .

Id. at 31. Although the Court thus found in favor of the State on this technical issue, it nevertheless stated the following:

. . . We take this opportunity to suggest that the Standard Jury Instructions in Criminal Cases Committee revise the definition of vessel as used in the BUI jury instruction by omitting the reference to a boat being subject to a license tax for operation. Such a revision would be in accordance with section 327.35 [the BUI statute], and we believe it

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would more accurately reflect the legislative intent to discourage boating under the influence without regard to boating registration requirements.

Id., at 33. That Committee, in fact, did subsequently follow the Court’s recommendation by proposing the suggested revised definition, and the Florida Supreme Court subsequently adopted it. See, In re Standard Jury Instructions in Criminal Cases – Report 2013-03, 146 So.3d 1110, 1111 (Fla. 2014) (deleting the phrase “that is subject to a license tax for operation” from the definition of the word “vessel” in instructions 28.14, 28.15, 28.16, and 28.17). CHAPTER II: Initial Contact with DUI Suspect (Vehicle Stops) A. “Stops” vs. “Encounters” State v. Goodwin, 36 So.3d 925 (Fla. 4th DCA 2010): Police officer’s requesting car registration and insurance card in addition to defendant’s driver’s license did not transform her consensual encounter with defendant into an investigatory stop; Court found that requesting all three types of identification is a reasonable way to verify a person's identity; moreover, officer's mere use of her spotlight and flashlight did not change result since officer did not approach with her hand on her weapon, nor did she direct the defendant to take any physical action other than producing his identification. Caldwell v. State, 41 So.3d 188 (Fla. 2010): Burglary defendant's encounter with police officer was not transformed into seizure of defendant through administration of Miranda warnings; defendant was approached in public area during daytime, officer did not use lights or sirens or display weapon, and officer informed defendant that he was not under arrest but that he wanted to make sure defendant was aware of his rights; disapproving Raysor v. State, 795 So.2d 1071 (Fla. 4th DCA 2001). Smith v. State, 87 So.3d 84 (Fla. 4th DCA 2012): Officer parked his patrol vehicle almost catty corner to a legally parked car, activated his emergency lights so to warn oncoming traffic and illuminated the interior of the defendant’s vehicle with his spotlight. Court considered it a seizure without reasonable suspicion and, thus, marijuana found based on officer smelling odor when approaching car suppressed. Dermio v. State, 112 So.3d 551 (Fla. 2d DCA 2013): Defendant parked in parking lot of local bar at 3:30 a.m., motor running, lights on. Deputy pulled in behind and turned on emergency lights, blocking him in. Deputy got out of her car and walked up to defendant’s car noticing defendant in the driver’s seat, head cocked to left side with cell phone lodged between shoulder and cheek, with eyes closed apparently asleep. Deputy shined flashlight, no response, tapped window, defendant awoke but out of it/incoherent. Deputy asked defendant to roll down window three times with no response. Concerned for defendant’s safety, deputy opened car door, smelled burnt marijuana, observed metal pipe in center console. Deputy testified that when attempting to talk to defendant, eyes were droopy and deputy said she had suspicion of DUI. She called her stop “investigatory” but also said her original purpose was to make sure defendant’s safety was okay, that he was fine, but in her head it was possible DUI. Court held

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that this was a valid welfare check that did not involve constitution implications and was a consensual encounter. Court also held that although deputy blocked defendant in with overhead lights on, no seizure because defendant was asleep and not aware of what deputy did, and did not submit to a display of police authority, and even when awakened, there was no evidence that the incoherent defendant was aware of the deputy’s presence. Court cited G.M. v. State, 19 So.3d 973 (Fla.2009) (discussed in the DUI Law Manual on this topic at pages 63-64), in which the Florida Supreme Court held that the suspect was not seized until he became aware of and submitted to police authority. The Court went on to hold that even though telling defendant to roll down window and exit vehicle could turn the consensual encounter into an investigatory stop, it did not in this case because at that point, the deputy was still concerned for the defendant’s safety. B. Stops Based on Crimes: Reasonable Suspicion is the Standard Beahan v. State, 41 So.3d 1000 (Fla. 1st DCA 2010): Majority opinion held that officer lacked reasonable suspicion that defendant was impaired at time of traffic stop. Majority held that neither fact that defendant was driving slowly in residential neighborhood, fact that he stopped a few times along the side of street, fact that he arguably made improper U-turn, nor fact that events took place in area where drug transactions are known to take place is sufficient to support reasonable suspicion. As to one aspect of defendant’s driving, majority stated: “The fact that the wheels came over the curb and a few feet onto the grass is not itself a reason for concern. An unimpaired driver might have thought that the street was wide enough for the turning radius of the vehicle only to find that it was not.” 41 So.3d at 1003. Dissenting opinion properly pointed out that reasonable suspicion can exist even if the suspicious activity is consistent with innocent activity, citing Hernandez v. State, 784 So.2d 1124, 1126 (Fla. 3d DCA 1999), and quoted the statement from State v. Johnson, 516 So. 2d 1015, 1021 (Fla. 5th DCA 1987) that a police officer's suspicions need not be inconsistent with a hypothesis of innocence; rather, they need to be based only on rational inferences, from articulable facts, which reasonably suggest criminal activity. Id., at 1004. It should be noted that new support for the dissenting opinion’s position can be found in the recent U.S. Supreme Court case of Navarette v. California, 572 U.S. 393, 403 (2014) (“It is true that the reported behavior might also be explained by, for example, a driver responding to ‘an unruly child or other distraction.’ Brief for Petitioners 21. But we have consistently recognized that reasonable suspicion ‘need not rule out the possibility of innocent conduct.’ United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).”). (Navarette will be addressed in more detail below later in this Update, first in the context of the topic “Unusual Driving/Suspicion of Impairment” at pages 17-18 and again in the context of the topic “Stops Based on ‘Tips’ of Erratic or Drunk Driving,” at pages 22-29.

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C. "Pre-Textual" Stops State v. Proctor, 161 So.3d 409 (Fla. 5th DCA 2014): Here, the trial court granted a motion to suppress a traffic stop for driving without headlights activated, relying on Payne v. State, 654 So.2d 1252 (Fla. 2d DCA 1995). On appeal by the State, the Fifth District Court of Appeal reversed because the legal proposition set forth in Payne (i.e., a pretextual stop finding) was overturned by Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) and Holland v. State, 696 So.2d 757 (Fla.1997) (each case held that the reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop, but rather on the validity of the basis asserted by the officers involved in the stop). E. Traffic Stops: A Comprehensive Argument to Support the Contention that the Standard to Stop a Vehicle for a Non-Criminal Traffic Violation is Reasonable Suspicion Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014): This is the case in which the United States Supreme Court found that a police officer can have reasonable suspicion to make a traffic stop even when he or she has made a mistake of law, as long as the mistake is reasonable. This case is, accordingly, more thoroughly considered in the topic titled “Stops Based on a ‘Mistake of Fact’ or ‘Mistake of Law,’ ” at pages 32-36 of this Update. But this case also gives an unexpected boost to the argument that a traffic stop for a non-criminal infraction need be based only on reasonable suspicion rather than probable cause. This author’s DUI Law Manual went to great lengths to demonstrate that the unfortunate dictum in Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed. 2d 89, 95 (1996) (i.e., that “[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred” (emphasis added)) was not intended to change the seemingly settled tradition of applying the standard of reasonable or founded suspicion to both criminal and non-criminal traffic stops. See, DUI Law Manual, at pages 70-80. Fortunately, in the course of deciding the “mistake of law” issue in Heien – which was a case which clearly dealt with a stop based on an alleged violation of a non-criminal infraction statute – the United States Supreme Court made the following pronouncement:

A traffic stop for a suspected violation of law is a “seizure” of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment. Brendlin v. California, 551 U.S. 249, 255–259, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). All parties agree that to justify this type of seizure, officers need only “reasonable suspicion”—that is, “a particularized and objective basis for suspecting the particular person stopped” of breaking the law. Prado Navarette v. California, 572 U.S. ––––, ––––, 134 S.Ct. 1683, 1687–88, 188 L.Ed.2d 680 (2014) (internal quotation marks omitted). The question here is whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition. We hold that it can.

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Certainly, the Supreme Court’s dictum in Whren seemed to immediately create a stir in the legal community – which has endured to some extent – on the issue of the applicable standard to stop a vehicle for a non-criminal traffic infraction. Yet the Supreme Court in Heien amazingly seems to have just as quickly resolved the issue by effectively clarifying that the standard is reasonable suspicion. In fact, it seems that there was never really an issue in the first place because “all parties agree” that this is the standard! The announcement in Heien that reasonable suspicion is the standard for such stops has escaped the attention of most courts. However, some courts have responded to it. For example, in Allgier v. State, 358 P.3d 1271 (Wyo. 2015), a traffic stop was made based on the non-criminal traffic infractions of following too closely and cracked windshield. After referring to some prior Wyoming appellate cases that had utilized the probable cause standard to determine the validity of a stop based on a traffic violation, the Wyoming Supreme Court stated:

. . . The United States Supreme Court, however, has recently stated that the correct standard to justify a traffic stop is reasonable suspicion. Heien v. North Carolina, ––– U.S. ––––, ––––, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014). “The primacy of the Supreme Court of the United States in constitutional areas is firmly e[m]bedded in our law by judicial decision and in our own State Constitution, Art. 1, § 37, and Art. 21, § 24.” Doe v. Burk, 513 P.2d 643, 644 (Wyo.1973). To the extent that they conflict with the reasonable suspicion standard articulated in Heien, Tiernan and its progeny are hereby overruled.).

358 P.3d at 1276. The Wyoming Supreme Court later confirmed this ruling in Clay v. State, 372 P.3d 195, 198 (Wyo. 2016) (stop was made for traffic infractions; Court stated: “This Court recently made it clear that the correct standard to justify a traffic stop is ‘reasonable suspicion.’ Allgier, ¶ 14, 358 P.3d at 1276 (citing Heien v. North Carolina, ––– U.S. ––––, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014)).”) Additionally, in U.S. v. Morales, 2015 WL 2165353 (U.S. Dist. Ct. Kans. 2015), a stop was made for the non-criminal traffic infraction of failure to maintain a single lane. In addressing whether the traffic stop was justified, the federal district court stated:

The Fourth Amendment to the United States Constitution protects individuals against “unreasonable searches and seizures.” U.S. Const. amend. IV. “A traffic stop for a suspected violation of law is a [‘s]eizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.” Heien v. North Carolina, ––– U.S. ––––, ––––, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014). “[T]o justify this type of seizure, officers need only ‘reasonable suspicion’—that is, a particularized and objective basis for suspecting the particular person stopped of breaking the law.” Id. (quotation omitted). Put differently, a traffic stop is justified at its inception if an officer has “an objectively reasonable articulable suspicion that a traffic violation has occurred.” United States v. Barraza–Martinez, 364 F. App'x 453, 457 (10th Cir.2010) (quotation omitted).

2015 WL 2165353, at *2.

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Finally, in Richardson v. State, 2016 WL 916454 (Md. App. March 9, 2016), another case dealing with a traffic stop for a non-criminal traffic infraction (seat belt violation), the Maryland Court of Special Appeals stated:

In addition to being justified by probable cause, a traffic stop may be justified by the lesser standard known as reasonable articulable suspicion. See Heien v. North Carolina, ––– U.S. ––––, 135 S.Ct. 530, 536 (2014) (observing that in order to justify a traffic stop, officers need only “reasonable suspicion”—that is, “a particularized and objective basis for suspecting the particular person stopped” of breaking the law”) (quoting Navarette v. California, 572 U.S. ––––, ––––, 134 S.Ct. 1683, 1687–88 (2014) (internal quotation marks omitted)) . . .

2016 WL 916454, at *7. There are no cases of which this author is aware in which an appellate court has acknowledged the Heien case but nevertheless utilized probable cause as the proper standard to determine the validity of a traffic stop based on a non-criminal traffic infraction. F. Stops Based on Observations by “Fellow Officer” State v. Bowers, 87 So.3d 704 (Fla. 2012): Here, the Florida Supreme Court settled a conflict between the Second District’s decision in Bowers v. State, 23 So.3d 767 (Fla. 2d DCA 2009) and the Fourth DCA’s decision in Ferrer v. State, 785 So.2d 709 (Fla. 4th DCA 2001), regarding the possible application of fellow officer rule in the context of a suppression hearing involving a traffic stop which leads to DUI arrest. In both cases, the officer who made the stop did not appear at the suppression hearing. In both cases, the officer who arrived after the stop (and thus did not see any driving) was allowed to testify over a hearsay objection as to what the stopping officer had told him regarding the reason for the stop. In Ferrer, the Fourth District held that the second officer was authorized under the fellow officer rule to so testify and that the knowledge and grounds for the stop could be imputed to the second officer under said rule. The primary issue in Ferrer was not whether hearsay could be admitted at the hearing but whether the defendant’s right to confront a witness under the Sixth Amendment was violated. The Fourth District held that there was no confrontation violation, relying primarily on federal cases which had held that the right of confrontation does not apply to the same extent at pretrial suppression hearings as it does to trial. In Bowers, the Second District determined that the second officer’s testimony as to what the first officer told him about the defendant’s driving was hearsay and as such was not admissible to prove that the first officer witnessed the defendant violating a traffic law. The Second District found that the fellow officer rule is not a rule of evidence, does not change the rules of evidence, and is not one of the enumerated exceptions to the hearsay rule. On this point, the Second District found that the Fourth District had misapplied the fellow officer rule and certified conflict. On conflict review, the Florida Supreme Court agreed with the Second District, approved the holding in Bowers, and disapproved the Fourth District’s holding in Ferrer. The Court held that the fellow officer rule may not “be used as an evidentiary tool to circumvent otherwise

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inadmissible hearsay testimony.” The Court stated also that an “another ‘unknowing’ officer cannot rely on the fellow officer rule simply because the officer finds out relevant information possessed by another officer ‘after the fact,’ ” citing State v. Peterson, 739 So.2d 561, 568 (Fla. 1999). “In short,” said the Court, “the rule allows an officer to testify with regard to a previous link in the chain for the purpose of justifying his or her own conduct.” Note that in the Supreme Court’s version of Bowers, it appears that the State had argued, separate and apart from the fellow officer rule argument, that the hearsay statement of the second officer (as to what the first officer had told him regarding the reason for the stop) should have been admissible based on Lara v. State, 464 So.2d 1173, 1177 (Fla. 1985). The Supreme Court in Bowers rejected this argument as follows: “Moreover, we reject the State's argument that Lara v. State, 464 So.2d 1173, 1177 (Fla. 1985), set forth a broad rule that hearsay is always admissible in a motion to suppress hearing.” There is no discussion in Bowers of why the hearsay was not admissible in that particular case or of how to determine when hearsay would be admissible in other suppression cases. While this issue is quite complex and would take up more time and effort than what is called for in this DUI Law Update, the reader is invited to contact the author of this Update to obtain the full explanation for why the author believes Bowers was wrongly decided (for several reasons), in a document titled “A Reasoned Critique of State v. Bowers, 2012 WL 572972 (Fla. February 23, 2012).” Suffice it to say that the Court misapprehended the impact of Johnson v. State, 660 So.2d 648 (Fla.1995) on the breadth of the fellow officer rule. Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017): This case addresses the fellow officer rule, and again, as in Bowers, the Court misapprehended the impact of its prior opinions on the fellow officer rule. However, because this case was decided in the context of probable cause to order a blood draw rather than in the context of a traffic stop, this case is more fully addressed under the new topic of “probable cause based on fellow officer rule” at pages 83-92. Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012): Here a deputy testified that he was asked by a U.S. Marshall to stop defendant’s vehicle because of the U.S. Marshall’s suspicion that defendant was involved in a homicide. The U.S. Marshall did not testify at the hearing and there was no record evidence of the U.S. Marshall’s grounds for suspecting that defendant had been involved in a homicide. Accordingly, the Court found that “there is nothing on the record to impute” to the deputy and therefore the fellow officer rule did not apply. However, the Court found that since defendant initially refused to stop after officer had directed him to do so, the stop was still valid based on defendant’s fleeing and eluding. Carter v. State, 120 So. 3d 207 (Fla. 5th DCA 2013): Citing Bowers, supra, Court found that fellow officer rule could not justify traffic stop in this case. Police officer who testified at hearing was passenger in patrol car and received no information from officer who was driving patrol car as to alleged traffic violation committed by defendant; further, officer who testified could not recall seeing the traffic violation himself.

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G. Unusual Driving/Suspicion of Impairment/Community Caretaking Doctrine Beahan v. State, 41 So.3d 1000 (Fla. 1st DCA 2010): This case was already addressed at page 7 of this Update under the previous topic of: “Stops Based on Crimes: Reasonable Suspicion is the Standard.” State v. Gentry, 57 So.3d 245 (Fla. 5th DCA March 11, 2011): Officers were justified in stopping a vehicle suspecting that the driver may have been impaired or ill when they observed defendant stopped at a four-way stop for twenty minutes, with brake light engaged and head down, and when officer arrived, defendant proceeded from stop sign. Shively v. State, 61 So.3d 484 (Fla. 2d DCA May 25, 2011): Garage employee called off-duty deputy because defendant was sitting in his car having trouble putting a parking token into the machine to raise the gate. The officer suspected he was impaired, he appeared confused, eyes bloodshot, speech slurred. Vehicles were backing up behind the defendant’s vehicle so the deputy diverted the other vehicles and directed the defendant to back out of the exit lane and pull over where he would not impair traffic. The defendant got out of his vehicle, staggered and leaned against the vehicle to maintain his balance. The officer smelled alcohol as he approached the defendant. After a DUI investigation, the defendant was arrested for DUI and cocaine was found in his pocket. The Court found that due alone to the defendant’s inability to operate the token machine and leave the garage, impeding the traffic flow, the officer properly exercised a “community caretaking function.” The defendant voluntarily exited the vehicle and showed the signs that precipitated his arrest. The Court also held that even if the officer’s direction to move the vehicle constituted an investigative stop, the legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether the driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior, citing DHSMV v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992).

Harrington v. Department of Highway Safety and Motor Vehicles, 136 So.3d 691 (Fla. 2d DCA 2014): Sometimes, it’s good to hear directly from the source. This was a Per Curium Denied Opinion in a DUI administrative license suspension case. But Judge Altenbernd, the author of the Second District’s Opinion in Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), took the opportunity to write a clarifying comment about Crooks in a concurring opinion. It reads in its entirety as follows:

I fully concur in the denial of this petition for certiorari review. I write to explain that the petitioner's reliance on Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), is misplaced. A headnote to that opinion overstates and oversimplifies the holding in the case, which I happen to have authored. Mr. Crooks was not stopped on suspicion of driving under the influence when he was weaving in his lane or otherwise driving in a fashion that suggested he was impaired. On the interstate in the middle of the afternoon, one police car pulled in behind Mr. Crooks and another pulled along the driver's side of his vehicle. When Mr. Crooks moved his car to the right, the officers stopped him for violating section 316.089(1), Florida Statutes (1995), which requires vehicles to be driven “as nearly as practicable entirely within a single lane.” No officer in Crooks suggested that he or she believed that Mr. Crooks might be intoxicated or otherwise impaired.

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I do not regard Crooks as even persuasive precedent in a case where an officer stops a car late at night because the driver is weaving in a lane and there is no basis to believe that the driver is avoiding other traffic. Even when a vehicle manages to stay within a single lane, there are patterns of driving that an experienced officer may rely upon to establish reasonable suspicion that the driver is impaired. That suspicion allows the officer to conduct a brief traffic stop to determine whether the officer has probable cause to arrest the driver for DUI.

136 So.3d at 691-92. Navarette v. California, 572 U.S. 393, 134 S.Ct. 1683, 188 L.Ed.2d 680 (U.S. 2014): In this United States Supreme Court case, an anonymous 911 caller reported that another vehicle had run the caller’s vehicle off the road; a police officer eventually stopped the suspect vehicle based on the 911 call. Although this case is highly significant in the context of the issue of when police can stop a vehicle based on an informant’s tip, the case is also relevant for consideration of the kind of driving behavior which can give rise to reasonable suspicion of DUI. Specifically, after determining that the tip met the requisite requirements for reliability, the Court subsequently addressed the driving behavior at issue and concluded that “the behavior alleged by the 911 caller, ‘viewed from the standpoint of an objectively reasonable police officer, amount[s] to reasonable suspicion’ of drunk driving.” 572 U.S. at 403-04, quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Court later made the following comment:

. . . Running another vehicle off the road suggests lane-positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues. See The Visual Detection of DWI Motorists 4-5. And the experience of many officers suggests that a driver who almost strikes a vehicle or another object – the exact scenario that ordinarily causes “running [another vehicle] off the roadway” – is likely intoxicated. See id., at 5, 8. As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving.

Id., at 404. (Emphasis added). Thus, notwithstanding that these comments were made in the context of police responding to a 911 call rather than an officer’s personal observations, the above passage should be helpful to establish that an observation of running another vehicle off the road, if accepted as true, constitutes per se reasonable suspicion of DUI. Additionally, the Court took issue with the defendant’s argument (and implicitly with similar arguments made by the dissent – see Justice Scalia’s dissenting opinion at 572 U.S. 404-14) that there were other possible explanations for the defendant’s driving behavior:

Petitioners’ attempts to second-guess the officer’s reasonable suspicion of drunk driving are unavailing. It is true that the reported behavior might also be explained by, for example, a driver responding to “an unruly child or other distraction.” Brief for Petitioners 21. But we have consistently recognized that reasonable suspicion “need not

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rule out the possibility of innocent conduct.”

Id., at 403, quoting United States v. Arvizu, 534 U.S. 266, 277 (2002). State v. Vinci, 146 So.3d 1255 (Fla. 2d DCA 2014): Police officer made a lawful stop of defendant's vehicle for a DUI investigation; police officer observed defendant for approximately a mile weaving within his lane, the vehicle drifted to the right side of the lane and hit the reflectors, then drifted to the left side of the lane and hit the reflectors, and defendant turned on his left blinker but did not turn left. Agreda v. State, 152 So.3d 114 (Fla. 2d DCA 2014): Here, a detective stopped a vehicle based on the fact that it was driving at a speed of 45 mph in the right hand curb lane on a highway with a 65 mph speed limit with a line of five vehicles driving behind the suspect vehicle. The detective testified that that the car was impeding the flow of traffic. The trial court found the stop to be proper based on the detective's concern that the car's slow speed was caused by a possible medical problem with the driver, but the Second District Court of Appeal reversed. The Court first found (for reasons addressed later in this Update discussing Agreda in the context of the topic titled “stops based on slow speed/impeding traffic” at pages 39-40 that the vehicle was not driving so slow as to impede the flow of traffic. The Court also rejected the argument accepted by the trial court that the stop could be justified based on a “legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence.” The Court noted that the detective denied that he stopped the car for these reasons. Irrespective of the detective's subjective intentions, the Court found that the circumstances of this case simply did not present an objective basis for a stop pursuant to law enforcement's “so-called community caretaking function.” Specifically, the detective observed nothing to objectively suggest that there was a problem with the car or driver. In the absence of something more than simply driving more slowly than most motorists, the Court found that the stop here was not justified. H. Failure to Maintain Single Lane, F.S. 316.089(1) Peterson v. State, 264 So.3d 1183 (Fla. 2d DCA March 6, 2019): Here, a deputy testified that he observed the defendant’s vehicle cross the solid white line twice within a mile-and-a-half distance. However, the deputy acknowledged: (1) this occurred on a one-way street with a bike lane on each side, (2) there was no oncoming traffic, (3) he did not see any bicycles on the street at the time, (4) he did not see any pedestrians affected, (5) the driving pattern did not impact traffic in any way, and (6) he did not assume that the defendant was under any impairment at that time. Under such circumstances, the Second District Court of Appeal held that because there was no evidence that the defendant’s crossing the white line on two occasions created a reasonable safety concern, the deputy could not validly stop the defendant for violating section 316.089(1).

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State v. Wilson, 2019 WL 1715731 (Fla. 5th DCA April 18, 2019): Court acknowledges that generally for a stop to be justified based on F.S. 316.089(1), the driving pattern must affect other traffic. But here (unlike what happened in Peterson, supra), the deputy’s uncontradicted testimony was that the defendant’s vehicle drifted from his lane of traffic and an adjacent vehicle had to brake suddenly to avoid a collision. Therefore, the Court held the stop was proper and thus the trial court erred in suppressing the stop. I. Driving on the Wrong Side of the Road, F.S. 316.081(1) State v. Boston, 267 So.3d 463 (Fla. 2d DCA Jan. 18, 2019): For approximately one hundred feet, the defendant drove his automobile in the oncoming lane of traffic. This constitutes a violation of section 316.081(1), which requires that “[u]pon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway.” However, rather than focusing on that statute, the trial court looked to the reasonableness of the defendant’s driving. The trial court opined on the confusing nature of the intersection at issue and noted that no one else was on the road. The trial court also found it problematic that the officer was unclear on whether the stop was based on failure to maintain a single lane (316.081) or “driving the wrong way.” The Second District Court of Appeal disapproved of this subjective analysis, stating: “Uncontroverted evidence established that Mr. Boston drove his vehicle in the wrong lane. He thus violated section 316.081 and provided Deputy Schultheis with an objectively valid reason to stop him.” 267 So.3d at 465. The Court also cited to Fla. Dep't of Highway Safety & Motor Vehicles v. Jones, 935 So.2d 532 (Fla. 3d DCA 2006), which is discussed in this author’s DUI Manual on this topic at pages 95-96. J. Officer Outside His or Her Jurisdiction 2. Citizen’s Arrest State v. Price, 74 So.3d 528 (Fla. 2d DCA 2011): Officer wearing uniform in unmarked car, out of jurisdiction, was on his way home. He saw defendant’s car on ramp to get on highway make wide turn drifting off to the left of the white line, speed up to approximately 80 mph and then slow down, speed up, and slow down again, drifted between lanes, and when his lane was running out, cut off a truck causing it to take evasive action, swerve off to right of fog line and came within foot of striking a bridge. Officer called dispatch to see if FHP or sheriff available in area but none were so he stopped car himself. Told defendant to keep hands on steering wheel until deputies from sheriff’s office arrived. Trial court granted motion to suppress based on “under color of office” doctrine but Second District Court of Appeal reversed. Court explained that officers outside of jurisdiction making arrest have the same ability to make an arrest as does a private citizen (and DUI is a breach of the peace for a citizen may make an arrest). However, police officers do not have superior power of arrest than private citizens. Thus, the “under color of office” doctrine is designed to prevent law enforcement officials from using the powers of their office to observe unlawful activity or to gain access to evidence not available to a private citizen. In this case, what the officer observed was the same as what a private citizen

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could have observed so the “under color of office” doctrine does not apply. The Court reiterated that “the mere fact that an officer acts like a police officer in making an arrest outside of his geographical jurisdiction does not mean that he is improperly acting under the color of his office.” 74 So.2d at 530, quoting, San-Martin v. State, 562 So.2d 776, 777–78 (Fla. 2d DCA 1990). Accordingly, as in Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985) and State v. Furr, 723 So.2d 842 (Fla. 5th DCA 1998) (both cases are discussed in the DUI Law Manual at pages 97-99), the officer’s use of police lights and his detaining defendant while wearing his police uniform did not violate the “color of office” doctrine. Mattos v. State, 199 So.3d 416 (Fla 4th DCA 2016): In this case, an officer of the Miramar Police Department encountered the defendant when he was dispatched to 69th Avenue and Pembroke Road in reference to a driver passed out behind the wheel of a vehicle. The eastbound lanes of Pembroke Road at that location lie within the boundaries of the city of Miramar, while the westbound lanes are in the city of Pembroke Pines. Upon his arrival, the officer observed the defendant’s vehicle idling in the middle lane of the three westbound lanes of Pembroke Road. The vehicle was “on the Pembroke Pines side of the border,” and facing west. There were other vehicles traveling on the road, and the defendant’s vehicle posed a danger to other drivers. The officer parked behind the defendant’s vehicle and activated his emergency lights. The officer approached the vehicle and noticed that the defendant was passed out in the driver’s seat “with the ignition on and the vehicle in drive with his foot on the brake.” The passenger was also passed out. The officer reached into the vehicle, put it into park, and turned the ignition off. The officer was able to eventually wake up the defendant and noted obvious signs of impairment. The officer notified the Pembroke Pines Police Department of the situation, but officers were attending to a robbery and could not respond. The defendant subsequently declined the officer’s request that he submit to field sobriety tests. The officer transported the defendant to a breath alcohol testing (“BAT”) facility, where the defendant refused to give a breath sample. The trial court denied the defendant’s motion to suppress, finding that there was a breach of the peace, which would give rise to an exception to the rule that a law enforcement officer may not make an arrest outside of his jurisdiction. On appeal, The Fourth District Court of Appeal agreed that these circumstances constituted a breach of the peace, and thus the citizen’s arrest theory applied. The Court rejected the defendant’s argument that “the officer did not observe a driving pattern that constituted a breach of the peace.” The Court first cited Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985), in which the Fourth DCA had previously found that the defendant’s erratic driving, which forced other drivers off the road, was a breach of the peace. The Court then stated:

In a subsequent case, an appellant sought to distinguish Edwards, arguing that “the mere act of drunk driving without actually forcing vehicles off the road, or otherwise endangering motorists or pedestrians, is not a breach of the peace.” State v. Furr, 723 So.2d 842, 844 (Fla. 1st DCA 1998). The court rejected the argument, noting that other jurisdictions that follow the common-law breach of the peace rule for a citizen’s arrest have found that operating a motor vehicle while intoxicated constitutes a breach of the peace. Id. at 844–45 (citations omitted).

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Thus, we find that Officer Pedrero observed a breach of the peace. Mattos was found passed out in the driver's seat of a vehicle that was stopped in the middle of traffic. The passenger was also passed out. The car was in drive and Mattos' foot was on the brake. Mattos emanated the odor of alcohol. It strains credulity to assert that these circumstances did not pose a threat to the safety and order of the public.

199 So.3d at 420. (Emphasis added).Thus, Mattos reinforces the conclusion in Furr that “operating a motor vehicle while intoxicated constitutes a breach of the peace” and applies the breach of the peace doctrine to a pure actual physical control scenario with no actual driving. However, the Court also agreed with the defendant’s argument that the officer acted under color of law when he began conducting a DUI investigation. The Court stated: “[O]nce Officer Pedrero attempted to have him submit to a breathalyzer and perform field sobriety exercises, he was seeking evidence only available to him in his capacity of a law enforcement officer.” (Note that the officer in this case went further than the officer described above in Price.) Accordingly, the Court held that the trial court erred in denying the motion to suppress, but only with respect to the evidence gathered by the officer once he began acting under color of law. Interestingly, the officer testified that the Miramar and Pembroke Pines Police Departments had a mutual aid agreement. However, he was completely unaware of the contents of the agreement and the state failed to introduce into evidence a copy of any such agreement. Therefore the Court held that the exception to the general rule barring extraterritorial arrests did not apply in that the state failed to present any competent evidence as to the substance of the mutual aid agreement between the two cities. K. Stops based on “Tips” of Erratic Driving or Drunk Driving – and new topic of stops based on tips of other circumstances leading to a DUI investigation DHSMV v. Ivey, 73 So.3d 877 (Fla. 5th DCA 2011): In this administrative license suspension case, the Fifth District Court of Appeal reversed the circuit court’s reinstatement of the motorist’s driver’s license, and held that the tips provided by a store's customer and the customer's friend were sufficient to create reasonable suspicion that justified a traffic stop of the motorist for DUI. The Court initially explained that “a reasonable suspicion can be based solely on information provided by an ordinary citizen.” The Court found also that, as occurred in State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997), the lower court had incorrectly determined that the informants were anonymous tipsters whose information had to be corroborated before it could justify a traffic stop. In fact, the customer and the friend were not anonymous; even though the officers did not know the identity of the informants at the time they made the stop, the information given to the dispatcher was constructively imputed to the arresting officers, as in Evans. Also, the officers were later able to contact the informants and get their written statements. Therefore, as in Evans, the informants qualified as “citizen informants” rather than anonymous tipsters; as such, the information they provided was presumed reliable and needed no corroboration. (Evans

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is discussed in detail in the DUI Law Manual at pages 100-101.). Note that the Court, in distinguishing the cases cited by the lower court, made the following significant comment:

Thus all four cases on which the circuit court relied in granting the writ involved criminal activities other than DUI, and all involved anonymous callers who declined to identify themselves to the police, unlike the tipsters in the case now before us. Florida courts have recognized that valid safety concerns can warrant a brief investigative stop by law enforcement officers to determine whether a driver is intoxicated using a somewhat more relaxed standard than that required for other crimes. See State, Dep’t of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992); see also Ellis v. State, 755 So.2d 767, 769 (Fla. 4th DCA 2000) (citing DeShong, 603 So.2d at 1349). . . .

73 So.3d at 880-81. (Emphasis added). The reference to the “somewhat relaxed standard” in DUI/unusual driving cases is a paraphrasing of the following statement from DeShong: “The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” 603 So.2d at 1352. (Emphasis added). Prior to Ivey, numerous Florida cases had quoted or paraphrased that statement. See, e.g., State v. Davidson, 744 So.2d 1180, 1180-81 (Fla. 2d DCA 1999); Finizio v. State, 800 So.2d 347, 349 (Fla. 4th DCA 2001); Ndow v. State, 864 So.2d 1248, 1250 (Fla. 5th DCA 2004). However, all of the prior cases involved driving behavior that was observed by a law enforcement officer. Ivey is thus the first Florida appellate case to announce the “less suspicious”/“relaxed standard” principle in the context of an informant observing the unusual driving/suspected DUI behavior – and then passing on the observation to law enforcement. In Ivey, the tipster was found to be a citizen informant. But does the “relaxed standard” apply when an anonymous informant passes on the driving observations to law enforcement? The only Florida appellate case to address the issue of an anonymous tipster’s observations of unusual driving/suspected DUI behavior gave no hint of applying such a relaxed standard. See, State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998) (truck driver, who described automobile to police officers and told them that he had seen it weaving on highway and that he believed driver was impaired, was an anonymous tipster and, thus, independent corroboration was required before officers could stop automobile). (Rewis was discussed in the DUI Law Manual at pages 103-105). However, this result will likely change in view of the recent U.S. Supreme Court’s ruling in Navarette v. California, which is discussed next. Navarette v. California, 572 U.S. 393–, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014): This case constitutes the first time that the United States Supreme Court has considered the lawfulness of an investigative detention based on an “anonymous tip” of erratic or drunk driving. Specifically, the anonymous tipster here reported that a particular truck had run her vehicle off the roadway; she also provided the location of the incident and the direction of travel of the suspect truck. In

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an Opinion authored by Justice Thomas, five members of the Court concluded that based on the totality of the circumstances, the officer had reasonable suspicion to conduct the stop in this case. Prior to the ruling in Navarette, a nationwide split of authority had existed on the issue of a stop based on an anonymous tip of erratic or drunk driving. See, People v. Wells, 136 P.3d 810, 814 (Cal. 2006) (citing United States v. Wheat, 278 F.3d 722 (8th Cir. 2001)). As explained in Wells and Wheat, cases allowing such stops stressed the accuracy of the tipster’s description and location of the vehicle, the relatively greater urgency presented by drunken or erratic highway drivers, and the minimal intrusion involved in a simple vehicle stop. Wells, at 136 P.3d 814; Wheat, at 278 F.3d 729-730. On the other hand, cases invalidating such stops relied on the generality of the tipster’s information or the absence of corroborating evidence of illegal activity. Wells, at 136 P.3d 814; Wheat, at 278 F.3d 730-31. The only Florida appellate case to address this issue effectively adopted the latter view. See, State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998) (truck driver, who described automobile to police officers and told them that he had seen it weaving on highway and that he believed driver was impaired, was an anonymous tipster and, thus, independent corroboration was required before officers could stop automobile). (Rewis was discussed in the DUI Law Manual at pages 103-105). The majority opinion in Navarette did not address or even acknowledge the divergent viewpoints outlined above. Rather, the Court simply examined the specific facts in the case before it and applied the pertinent law to those facts under the totality of the circumstances. In this regard, the Court began its analysis as follows:

The Fourth Amendment permits brief investigative stops – such as the traffic stop in this case – when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see also Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The standard takes into account “the totality of the circumstances – the whole picture.” Cortez, supra, at 417, 101 S.Ct. 690. . . .

572 U.S. at 396-97. (Emphasis added). Having determined that reasonable suspicion in such cases requires a two part analysis, the Court proceeded to address the “degree of reliability” issue first: “The initial question in this case is whether the 911 call was sufficiently reliable to credit the allegation that petitioners’ truck “ran the [caller] off the roadway.” Id. at 398. (Later in its Opinion, the Court addressed the issue of “the content of information possessed by police,” i.e., the driving behavior as reported by the caller to police, see, id. at 401-04; that issue was previously addressed in this Update in the context of the topic of “Unusual Driving/Suspicion of Impairment” at pages 16-18). As to the degree of reliability issue, the Court focused primarily on its prior decisions in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The Court viewed these cases as “useful

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guides” on the issue of anonymous tips. Id. at 1688. After examining White and J. L., the Court provided three reasons for its conclusion that the 911 call in this case bore adequate indicia of reliability for the officer to credit the caller’s account as being truthful:

(1) “By reporting that she had been run off the road by a specific vehicle – a silver Ford F-150 pickup, license plate 8D94925 – the caller necessarily claimed an eyewitness basis of knowledge of the alleged dangerous driving.” Id. at 399. The Court noted that “[t]his is in contrast to J. L., where the tip provided no basis for concluding that the tipster had actually seen the gun.” Id. (2) Based on the location of the vehicle by police and timeline of events, the Court inferred that “the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.” Id. at 400. As to this point, the Court noted that “[t]here was no indication that the tip in J. L. (or even in White) was contemporaneous with the observation of criminal activity. . .” Id. (3) Finally, the Court found that the caller’s use of the 911 emergency system was “another indicator” of veracity: “A reasonable officer could conclude that a false tipster would think twice before using such a system” because “[a] 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.” Id. at 401.

The Court made one other point which is significant for purposes of the “degree of reliability” issue – even though the point was actually presented in the section of the Opinion dealing with “the content of information possessed by police.” Specifically, the Court implicitly rejected the dissent’s argument that the failure of the officer to observe any unusual driving or traffic infractions before stopping the defendant’s vehicle “discredited the informant's accusation,” see, Justice Scalia’s dissenting opinion at 412 (emphasis by Justice Scalia). Without specifically acknowledging the dissent’s argument in this regard, the Court stated:

Nor did the absence of additional suspicious conduct, after the vehicle was first spotted by an officer, dispel the reasonable suspicion of drunk driving. Brief for Petitioners 23–24. It is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time. Cf. Arvizu, supra, at 275, 122 S.Ct. 744 (“ ‘[s]lowing down after spotting a law enforcement vehicle’ ” does not dispel reasonable suspicion of criminal activity). . . .

Id. at 403. As to this point, the Court probably could have strengthened its reasoning had it noted that the officer had to make a U-turn in order to catch up to the defendant’s vehicle – especially where its earlier recitation of facts had acknowledged this fact. See, Navarette at 572 U.S. 395 (“At 4:00 p.m., the officer passed the truck near mile marker 69. At about 4:05 p.m., after making a U-turn, he pulled the truck over.”). Unlike the United States Supreme Court, the lower court opinion of the California Court of Appeal had made good use of this fact. See, Navarette v. State, 2012 WL 4842651, *9 (Cal. App. Oct. 12, 2012) (“In the circumstances presented here, we cannot agree the officers’ brief observation of the vehicle without incident belied or dispelled any reasonable concern about public safety. The five-minute delay in pulling

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over Appellants’ vehicle resulted from the fact that both Francis and Williams were driving north on Highway 1 when they first observed Appellants’ vehicle traveling south and thus needed to make U-turns and catch up to the vehicle before they could pull it over.”) Given the ruling by the Supreme Court in Navarette, are law enforcement officers now authorized to stop a vehicle based solely on an “anonymous tip” of erratic or drunk driving? Is this the type of situation that the majority was effectively treating as similar to a report of a person carrying a bomb as contemplated in the following passage from J.L.?:

The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam), and schools, see New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.

J.L., at 599 U.S. 273-274. (Emphasis added). On its face, the majority opinion in Navarette did not give any indication that the tip in the case before described a situation so dangerous that it justified a reduced showing of reliability, nor did it expressly announce any bright line rule to apply in cases involving anonymous tips of erratic or drunk driving. As previously discussed, the majority simply proceeded to apply the pertinent law to the facts under the “totality of the circumstances” – and this process included the distinguishing of its own facts from those in J. L. However, the dissenting opinion of Justice Scalia interpreted the majority’s opinion as much more decisive (and, in Justice Scalia’s view, much more extreme) than the majority was willing to admit:

The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that “an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver” provides without more the reasonable suspicion necessary to justify a stop. People v. Wells, 38 Cal.4th l078, 1082, 45 Cal.Rptr.3d 8, 136 P.3d 810, 812 (2006). See also, e.g., United States v. Wheat, 278 F.3d 722, 729–730 (C.A.8 2001); State v. Walshire, 634 N.W.2d 625, 626–627, 630 (Iowa 2001). Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Be not deceived. Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the

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Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California.

572 U.S. at 404-05. (Emphasis added). The author of this Update disagrees with much of the criticism contained in the above passage (but agrees that, as will be shown later in this discussion, the majority’s opinion has effectively created a “new rule” – just not the rule suggested by the above passage). For example, contrary to the assertion in the quoted passage, the majority in Navarette did not implicitly adopt the view that a 911 call alleging a single instance of possibly reckless or even possibly careless driving would be sufficient to justify a traffic stop. In fact, the majority explicitly rejected that notion – and emphasized that the driving behavior alleged in the instant case was particularly dangerous:

The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver's conduct: running another car off the highway. That conduct bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness. . . .

Id. at 403. Additionally, the passage from the dissent states that the Court in Wells (as well as other courts which agreed with Wells) allowed a mere uncorroborated anonymous tip “without more” to justify the stop of a vehicle. But it appears that the term “uncorroborated” in Wells was not intended to mean that there was no corroboration at all; rather, use of that term appeared to be referring to the situation where “the investigating officer is unable to corroborate that the driver is operating the vehicle recklessly and therefore unlawfully.” Wells, at 136 P.3d at 814. (Emphasis added). In fact, the Court in Wells subsequently clarified that the tip in that case “reported contemporaneous activity and its ‘innocent’ details were fully corroborated within minutes of the report.” Id., at 816. (Emphasis added). The passage from the dissent can also be criticized for its claim that the majority in Navarette was covertly adopting what the dissent perceived to be Wells’s “departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated.” (Emphasis added). The passage does not identify the type of corroboration contemplated. But if the passage is suggesting that in order to satisfy the Fourth Amendment, only corroboration of unlawful activity may be considered, then such suggestion would be erroneous. As noted by the Florida Supreme Court in State v. Butler, 655 So.2d 1123, 1128-29 (Fla. 1995) in addressing the effect of corroboration of innocent activity in the probable cause context, the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 244, n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) “reject[ed] the argument that corroboration of innocent activity, alone, may not be sufficient to support a finding of probable cause.” And as noted by the majority in Navarette, before the officers in Alabama v. White, supra, stopped the suspect vehicle, they confirmed the “innocent details” provided by the anonymous tip. 134 S.Ct. 1688, citing White, at 496 U.S. 327. White itself contained the following comment (later acknowledged by the majority in Navarette, see, 572 U.S. at 397-98):

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The Court’s opinion in Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller.

White, at 496 U.S. 331. (Emphasis added). (Citations omitted). The statements from these cases should make it clear that at least under some circumstances, corroboration of significant aspects of an anonymous tipster’s observations of innocent behavior may be sufficient to satisfy the Fourth Amendment – and thus corroboration of unlawful activity is not necessarily required. Therefore, if the majority in Navarette did sub silentio adopt the ruling of Wells and similar cases, as Justice Scalia suggests, then such adoption would not constitute a departure from the Court’s normal Fourth Amendment jurisprudence. Notwithstanding the dissent’s attempt to portray the majority’s holding as draconian, Justice Scalia’s overall point that law enforcement officers “will identify at once our new rule” is probably well taken – although that “new rule” is not nearly as harsh as Justice Scalia posits. That is, the three factors provided by the majority opinion in Navarette to support the validity of the stop in the particular circumstances of that case (i.e., eyewitness observations, contemporaneous reporting, and use of the 911 emergency system) are typically present in any anonymous tip of bad driving. (And if the anonymous tipster were to have face-to-face contact with an officer instead making a 911 call, then typically such a tip would be considered even more reliable than a 911 call; see, e.g., J.P.N. v. State, 931 So.2d 1066, 1068 (Fla. 4th DCA 2006) (“A face-to-face anonymous tip is presumed to be inherently more reliable than an anonymous telephone tip because the officers receiving the information have an opportunity to observe the demeanor and perceived credibility of the informant.”)). Therefore, although each future case must always consider the “totality of the circumstances,” law enforcement officers should generally be able to rely on an anonymous tip of dangerous or impaired driving in order to lawfully stop the suspect vehicle, especially when the tip is provided by a 911 caller (and likely also, when the tip is provided in face-to-face contact). However, arguments will still be available regarding whether the suspect vehicle has been properly identified, whether the reported behavior is actually contemporaneous (as opposed to stale), and whether the description of the driving behavior is sufficient to be considered dangerous driving and/or indicative of impaired driving. In view of the foregoing analysis, the Rewis case (referred to at the beginning of this discussion of Navarette) almost certainly has been effectively overruled by Navarette, at least as to the issue of the reliability of the anonymous tip. Rewis did not address the sufficiency of “the content of information possessed by police,” i.e., the driving behavior as reported by the caller to police, as was done in Navarette; it is conceivable that the description of the driving behavior in Rewis (“weaving on the highway”) might be deemed insufficiently detailed to qualify as dangerous or as indicative of impaired driving. See, e.g., Weiss v. State, 965 So.2d 842 (Fla. 4th DCA 2007) (utilizing the appropriate standard of review, District Court reinstated county court’s suppression of traffic stop based on officer’s observations of vehicle “weaving from one lane to another”

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because Court found that “weaving . . . may or may not establish reasonable suspicion for a traffic stop”). Then again, the U.S. Supreme Court in Navarette listed “weaving all over the roadway” (as announced in People v. Wells, 136 P.3d 810, 811 (2006)) as was one of the driving behaviors within its announcement that “we can appropriately recognize certain driving behaviors as sound indicia of drunk driving.” 134 S.Ct. at 1690. Of course, Rewis may have been incorrectly decided at the outset due to its failure to accord any degree of reliability to the tipster’s face-to-face contact with the officer. See, J.P.N. v. State, supra. See also, D.P. v. State, 65 So.3d 123, 129 (Fla. 3d DCA 2011) (“it should be noted that Rewis and Solino were decided before the [Florida] supreme court's decision in Baptiste, which recognized a distinction between the ‘truly anonymous tipster’ and a face-to-face (though unidentified) citizen informant.”)). For courts that tend to require independent corroboration of the illegal activity described in an anonymous tip in order to allow a stop based on such tip (even where the allegation is of dangerous or impaired driving, such as the Fifth District Court of Appeal’s Rewis case), it may take some time to adjust to the ruling in Navarette. This is demonstrated by the Fifth District Court of Appeal case of Grant v. State, 139 So.3d 415 (Fla. 5th DCA 2014), which is, to date, one of only two Florida appellate cases to acknowledge Navarette. In fact, reference to Navarette was made only in Judge Orfinger’s concurring opinion – and even the concurring opinion avoided addressing how Navarette would impact that case. Instead, after briefly discussing the facts and holding in Navarette and quoting from Justice Scalia’s dissenting opinion, Judge Orfinger stated: “Is the anonymous tip in this case as reliable as the tip in Navarette? Can Navarette be read harmoniously with J.L. as its majority suggests? I cannot say, but I do know that the issue will bedevil the courts for a long time to come.” 139 So.3d at 419. (Emphasis added). The other case citing Navarette was the dissenting opinion of Justice Canady in State v. Teamer, 151 So.3d 421, 431, 433 (Fla. 2014), and it pertained to a matter unrelated to the anonymous tip or dangerous driving issue. As an aside, the entire discussion of the “anonymous tip” in Navarette could probably have been avoided had the prosecution been more diligent, particularly at the trial level. Specifically, the Supreme Court explained the following in a footnote:

At the suppression hearing, counsel for petitioners did not dispute that the reporting party identified herself by name in the 911 call recording. Because neither the caller nor the Humboldt County dispatcher who received the call was present at the hearing, however, the prosecution did not introduce the recording into evidence. The prosecution proceeded to treat the tip as anonymous, and the lower courts followed suit. See 2012 WL 4842651, *6 (Cal.Ct.App., Oct. 12, 2012)

572 U.S. at 396, n.1. (Emphasis added). No explanation is provided as to why the prosecution did not present the testimony of the two witnesses who could have established the predicate for the 911 recording. More importantly, given that the Defense conceded at the hearing that “the reporting party identified herself by name in the 911 call recording,” it is unclear why the prosecution and lower courts (and even the United States Supreme Court) treated the tip as “anonymous.” See, State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997) (manager at McDonalds called 911 to report apparently intoxicated driver in the drive thru of the restaurant; Appellate Court found that where manager gave the dispatcher her name, her location, and that she was the

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manager of the McDonald's, manager was “citizen-informant” and not anonymous tipster, notwithstanding fact that trial court, both parties below, and both parties on appeal assumed that manager was anonymous informant). One final thought: Even though Navarette clearly appears to have provided law enforcement with greater flexibility to stop a vehicle based on an anonymous tip of alleged erratic or drunk driving, an officer receiving such a tip should still attempt to identify the tipster, if possible, because (as noted above) legal battles will likely still exist in these cases. For this reason, the sage advice from a Second District Court of Appeal case from four decades ago still rings true today:

. . . [T]he anonymous tip’s vulnerability to attack, and resulting litigation, emphasizes the need for law enforcement personnel to record the identity of an informant whenever possible. Information given on the street, of course, may require such quick action that no time is available for recording the informant's name and address, but whenever practicable under the circumstances, that information should be obtained and noted. This will enable the officer to later locate and identify the person who gave the information and thereby go far to remove from subsequent prosecutions the troublesome factor of anonymity. . . .

State v. Hetland, 366 So.2d 831, 839 (Fla. 2d DCA 1979), opinion approved, Hetland v. State, 387 So.2d 963 (Fla. 1980). State v. Godard, 202 So.3d 144 (Fla. 2d DCA 2016): In this case, a deputy responded to a call regarding two dogs left in a white vehicle in the parking lot of a Carrabba’s Restaurant with the windows up when the car was not running and the temperature was in the 90s that day. When the deputy arrived at the restaurant, he learned that a vehicle that was just pulling out of the parking lot was the vehicle in which the dogs were left. The manager advised the deputy that the dogs were left unattended for twenty to thirty minutes. The deputy eventually stopped the vehicle and although it turned out that the dogs were not in distress, the officer ended up arresting the defendant for DUI and Deriving While License Permanently Revoked. The trial court determined that because the dogs did not appear to be in immediate distress when the deputy approached the vehicle, the deputy’s continued detention of Godard violated her Fourth Amendment rights. To reach this conclusion, the trial court relied upon State v. Diaz, 850 So.2d 435 (Fla.2003). According to the opinion, it was clear at the suppression hearing that the trial court believed that if the purpose of the stop had been resolved when the deputy first observed the dogs, then the deputy could make no contact with the driver. The trial court found that “the investigation was reasonable” but that upon the deputy viewing the dogs they showed “no signs of distress consistent with what he had reported.” Thus, the trial court ruled that the deputy could not make contact with the defendant and granted the motion to suppress evidence. On appeal by the State, the Second District Court of Appeal reversed. The Court explained:

Here, the trial court erred in concluding that once the purpose of a stop is complete the deputy cannot make any contact with the driver. See Diaz, 850 So.2d at 440. Thus, even if the purpose of the stop to check on the welfare of the dogs

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and, in doing so, to determine whether Godard had committed animal cruelty had been completed, Deputy Knorr could legally make contact with Godard to explain the reason for the stop. And, as the State asserts, an explanation for the stop before the deputy left would seem to also comport with common courtesy and good public relations, as well as notifying Godard that she was free to leave. Godard correctly concedes that Diaz permits an officer to make contact for the purpose of explaining the basis for the stop. . . . In addition, the deputy’s testimony does not support the trial court’s conclusion that the purpose of the stop was complete once the deputy saw the shaggy dogs in the vehicle. The deputy testified that he was just beginning his investigation and that when he first looked into the vehicle it was impossible to tell if the dogs were suffering. . . . Thus, if the purpose of the stop had not been satisfied, Deputy Knorr could legally ask Godard for identification and run a check on its validity. See Lanier, 936 So.2d at 1161; see also Diaz, 850 So.2d at 439 (reiterating that once the purpose of the stop has been “clearly and unarguably satisfied” continued detention would be improper).

202 So.3d at 146. With regard to the reliability of the tip itself, the Defense argued that the Court should employ the “tipsy coachman” doctrine to affirm the order. Specifically, the Defense contended that “[a]ssuming arguendo that the deputy could conduct a traffic stop based upon a theory of animal cruelty, he acted upon a tip from an unknown source” which was not corroborated. The Court rejected this argument also:

In this case, we are not dealing with an anonymous tipster but a citizen informant. Information from a citizen informant “is at the high end of the tip-reliability scale” because the motivation is the desire to further justice rather than monetary gain. . . . Here, a citizen placed a call regarding the dogs being left unattended in the vehicle with the windows up and the car not running. Deputy Knorr did not testify whether the caller was anonymous or whether the manager was the caller. When the deputy arrived, a man immediately approached the deputy and identified himself as the manager of the Carrabba’s Restaurant. He pointed out the vehicle with the dogs and advised that they had been left in the vehicle unattended for twenty to thirty minutes. . . . Further, the manager had seen the vehicle himself with the dogs in it. The facts before the trial court show that the manager was a known citizen informant who made personal contact with the officer and pointed out the vehicle with the dogs that had been left unattended. Thus, we reject Godard’s argument on appeal that was not made below that the manager was an anonymous tipster.

Id. at 147.

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M. Stops Based on Teletype Information that Registered Owner of Vehicle has Suspended License State v. Laina, 175 So.3d 897 (Fla. 5th DCA 2015): In this case, an officer ran a license check on the defendant’s vehicle and discovered that the registered owner of the vehicle had a suspended license was suspended. The officer stopped the vehicle based on this information and the driver was eventually arrested for DWLS as an HO. The defendant filed a motion to suppress, alleging that the stop was illegal. The defense attorney acknowledged that the Fifth DCA had previously held in Smith v. State, 574 So.2d 300 (Fla. 5th DCA 1991) that an officer may stop a vehicle when he first determines that the registered owner of the vehicle does not possess a valid driver’s license. However, the attorney apparently persuaded the trial court that Smith had been implicitly overruled by State v. Teamer, 151 So.3d 421 (Fla. 2014). (Teamer is discussed in this Update at pages 41-42). The trial court therefore granted the motion to suppress and the State appealed. On appeal, the Defense argued that the Court should recede from Smith in light of Teamer. The Fifth District did not take too kindly to this argument, stating:

. . . We followed Smith in Hoover v. State, 880 So.2d 710 (Fla. 5th DCA 2004), Guffey v. State, 796 So.2d 1191 (Fla. 5th DCA 2001), and Florence v. State, 819 So.2d 939 (Fla. 5th DCA 2002). In addition, the Fourth District followed Smith and Hoover in Morrow v. State, 903 So.2d 1008 (Fla. 4th DCA 2005). No other district court of appeal has questioned or conflicted with the holding in Smith. Yet, in the proceeding below, Appellee’s counsel appears to have convinced the trial judge that Smith had been implicitly overruled by State v. Teamer, 151 So.3d 421 (Fla. 2014). On appeal, Appellee argues that we should recede from Smith in light of Teamer. In Teamer, a divided Florida Supreme Court held that an officer did not have reasonable suspicion to stop a vehicle based solely on his or her observation that the color of the vehicle did not match the color indicated on the registration associated with the vehicle's license plate (although the make of the car did match). Upon investigation, the officer learned that the vehicle had recently been painted, but smelled a strong odor of cannabis—which ultimately led to the discovery of illicit drugs in the vehicle. In determining that the officer did not have reasonable suspicion to stop the vehicle, the Teamer majority first noted “that the failure to update a vehicle registration to reflect a new color is not in specific violation of a Florida law,” id. at 426, and then ultimately reasoned that:

The color discrepancy here is not “inherently suspicious” or “unusual” enough or so “out of the ordinary” as to provide an officer with a reasonable suspicion of criminal activity, especially given the fact that it is not against the law in Florida to change the color of your vehicle without notifying the DHSMV.

Id. at 427–28. Smith obviously involves a different factual situation than Teamer; and, Smith is not once mentioned in the Teamer opinion. Particularly given that “the concept of reasonable suspicion is somewhat abstract[,]” U.S. v. Arvizu, 534 U.S. 266, 274, 122

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S.Ct. 744, 151 L.Ed.2d 740 (2002), such that different factual situations should be analyzed independently, id. at 273, 122 S.Ct. 744 (“When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing.” (emphasis added)), we readily conclude that Teamer did not impliedly overrule Smith, and remain confident that Smith was correctly decided.

175 So.3d at 898-899.

N. Stops Based on Erroneous Information Supplied by DHSMV Moore v. State, 123 So.3d 672 (Fla. 2d DCA 2013): This is the first Florida appellate case to acknowledge the possible effect of section 322.202, Florida Statutes (2002), regarding traffic stops based on erroneous information supplied by DHSMV. It is also the first Florida appellate case to acknowledge the possible impact of Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) on this issue. However, the Court here chose not to rule on these matters because of the poor record in the case before it (as will be explained below). The background for this case is as follows: In Shadler v. State, 761 So.2d 279 (Fla. 2000), the Florida Supreme Court determined that, for purposes of the exclusionary rule, DHSMV “is essentially a law enforcement agency.” Thus, the Court held that the mistake by DHSMV in that case (that the defendant’s license was suspended when, in fact, it was not suspended) was a law enforcement error and not a “court error” as was held in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) regarding a mistake by the clerk’s office. Accordingly, Shadler found that the stop in that case violated the Fourth Amendment. As noted at page 109 of the DUI Law Manual, in 2002 the Legislature attempted to, in effect, overrule the holding in Shadler by enacting section 322.202. This legislation purported to find that DHSMV was not a law enforcement agency and attempted to amend the evidence code and provide legislative findings in order to limit the application of the exclusionary rule in cases involving mistakes by DHSMV. Seven years later, the United States Supreme Court decided Herring, supra. In Herring, the Court applied the good faith exception to cases such as this, concluding that “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’” Id., at 704, quoting, Evans, at 514 U.S. 907-908, n. 6. Although no Florida appellate case had addressed the effect of the new statute or of Herring on the ruling in Shadler, the DUI Law Manual had offered the following comment:

Thus, in view of Herring, it is evident that Shadler’s reliance on the distinction between a court error and police error is no longer valid. Accordingly, a stop based on incorrect information supplied by DHSMV – even if deemed a police agency – will not be subject to the exclusionary rule as long as the error was a result of mere negligence, as opposed to a reckless or intentional act or systemic error.

(DUI Law Manual at 109).

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Now back to Moore: Here, a stop was based on information provided by DHSMV that although the tag of the vehicle was registered to the defendant, the tag was not assigned to the vehicle the defendant was driving. This turned out to be incorrect information. A motion to suppress was filed and heard based on the argument that the stop was invalid because there was no actual tag violation. However, neither the defense attorney nor the prosecutor came to the suppression hearing with the relevant case law as to this issue. From the bench, the trial court discovered the case of State v. Shadler, 714 So.2d 662 (Fla. 5th DCA 1998) , which was seemingly on point and held that such errors by the Division of Driver Licenses were not errors by a “law enforcement agency” and, thus, did not render a stop based on such mistaken information unconstitutional. The trial court therefore denied the motion to suppress. On appeal, the Second District Court of Appeal initially recognized that the Florida Supreme Court had reversed the Fifth District’s decision in Shadler v. State, 761 So.2d 279 (Fla. 2000) (the Court referred to the Fifth District’s version as “Shadler I,” and the Supreme Court’s version as Shadler II). The Second District also acknowledged that the legislature had enacted section 322.202, which, as noted by the Court, expressly states that “the Division of Driver Licenses and the Division of Motor Vehicles of the [DHSMV] are not law enforcement agencies.” The Court correctly noted that no Florida case law had addressed any motion to suppress based on this statute and the Court questioned whether the legislature could lawfully pass such a statute. But the Court also noted that this “interesting issue” was not resolved in the trial court and had not been argued in the case on appeal. The Court further acknowledged the holding of the United States Supreme Court in Herring, supra. However, because none of the relevant authorities had been argued below, the Court chose not to rule on the issue at that time. Instead, the Court stated:

In this unusual context, we conclude that the issue of whether Shadler II, the statutory amendment, or newer case law controls the outcome of the motion to suppress should first be argued to and resolved by the trial court before it is considered by this court. That court may consider any additional evidence that the parties consider relevant to this issue. Accordingly, we reverse the judgments and sentences and remand for a new hearing on the motion to suppress.

123 So.3d 675. R. Stops Based on a “Mistake of Fact” or “Mistake of Law” Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014): In this United States Supreme Court case, the Court ruled by an 8-1 margin that reasonable suspicion, as required for a traffic stop or an investigatory stop, can rest on a reasonable mistake of law. Applying this rule to the particular factual scenario in that case, the Court found that the officer’s mistaken belief that the pertinent North Carolina statute authorized a traffic stop where one of the vehicle’s break lights was out was reasonable, even though the North Carolina appellate courts later determined that the statute only required one break light to be functional. More specifically, the officer in Heien was following a suspicious vehicle and then noticed that only one of the vehicle's brake lights was working and so he pulled the vehicle over. The stop eventually led to the arrest of the Defendant, the passenger, for attempted trafficking in cocaine. The trial court denied the Defendant’s motion to suppress the seized evidence on Fourth Amendment grounds, concluding that the vehicle's faulty brake light gave the officer reasonable

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suspicion to initiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code provision, which requires that a car be “equipped with a stop lamp,” N.C. Gen.Stat. Ann. § 20–129(g), requires only a single lamp – which the vehicle had – and therefore the justification for the stop was objectively unreasonable. Reversing in turn, the North Carolina Supreme Court held that, even assuming no violation of the state law had occurred, the officer’s mistaken understanding of the law was reasonable, and thus the stop was valid. Following a remand to the North Carolina Court of Appeals to address other issues and a later affirmance by the North Carolina Supreme Court, the case made its way to the United States Supreme Court. In an opinion delivered by Chief Justice Roberts, the Court affirmed with only one dissenting vote. The Court initially noted that it has previously recognized that searches and seizures based on mistakes of fact can be reasonable. For example, the Court cited to Hill v. California, 401 U.S. 797, 802–805, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971) for the proposition that if officers with probable cause to arrest a suspect mistakenly arrest an individual matching the suspect's description, neither the seizure nor an accompanying search of the arrestee would be unlawful. The Court stated that “[t]he limit is that ‘the mistakes must be those of reasonable men.’ ” 135 S.Ct. at 536, quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Turning to the issue of reasonable mistakes of law, the Court stated:

But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

Id. The Court later added:

Although such recent cases did not address mistakes of law, older precedents did. In fact, cases dating back two centuries support treating legal and factual errors alike in this context. . . . Courts were to issue such certificates on a showing that the officer had “reasonable cause” – a synonym for “probable cause” – for the challenged seizure. [Citations omitted]. . . . This holding – that reasonable mistakes of law, like those of fact, would justify certificates of probable cause – was reiterated in a number of 19th-century decisions. [Citations omitted]. By the Civil War, there had been “numerous cases in which [a] captured vessel was in no fault, and had not, under a true construction of the law, presented even ground of suspicion, and yet the captor

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was exonerated because he acted under an honest mistake of the law.” The La Manche, 14 F.Cas. 965, 972 (No. 8,004) (D.Mass.1863).

Id., at 536-537. The Court also rejected arguments raised by the Defendant and amici:

Heien also contends that the reasons the Fourth Amendment allows some errors of fact do not extend to errors of law. Officers in the field must make factual assessments on the fly, Heien notes, and so deserve a margin of error. In Heien's view, no such margin is appropriate for questions of law: The statute here either requires one working brake light or two, and the answer does not turn on anything “an officer might suddenly confront in the field.” Brief for Petitioner 21. But Heien’s point does not consider the reality that an officer may “suddenly confront” a situation in the field as to which the application of a statute is unclear – however clear it may later become. A law prohibiting “vehicles” in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36–38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by. Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes – whether of fact or of law – must be objectively reasonable. [Emphasis by the Court.] We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce. Finally, Heien and amici point to the well-known maxim, “Ignorance of the law is no excuse,” and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.

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Id., at 539-540. (Emphasis added, except where specified otherwise). Turning to the facts of this case, the Court stated:

Here we have little difficulty concluding that the officer's error of law was reasonable. Although the North Carolina statute at issue refers to “a stop lamp,” suggesting the need for only a single working brake light, it also provides that “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps.” N.C. Gen.Stat. Ann. § 20–129(g) (emphasis added). The use of “other” suggests to the everyday reader of English that a “stop lamp” is a type of “rear lamp.” And another subsection of the same provision requires that vehicles “have all originally equipped rear lamps or the equivalent in good working order,” § 20–129(d), arguably indicating that if a vehicle has multiple “stop lamp[s],” all must be functional. The North Carolina Court of Appeals concluded that the “rear lamps” discussed in subsection (d) do not include brake lights, but, given the “other,” it would at least have been reasonable to think they did. Both the majority and the dissent in the North Carolina Supreme Court so concluded, and we agree. See 366 N.C., at 282–283, 737 S.E.2d, at 358–359; id., at 283, 737 S.E.2d, at 359 (Hudson, J., dissenting) (calling the Court of Appeals’ decision “surprising”). This “stop lamp” provision, moreover, had never been previously construed by North Carolina's appellate courts. See id., at 283, 737 S.E.2d, at 359 (majority opinion). It was thus objectively reasonable for an officer in Sergeant Darisse's position to think that Heien's faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop.

Id., at 540. (Emphasis by the Court). Given the ruling in this case, it would appear that some prior cases from Florida appellate courts prohibiting certain stops notwithstanding officers’ reasonable mistakes of law have been effectively overruled. See, e.g., Hilton v. State, 961 So2d 284, 298 (Fla. 2007) (Court found that stop for cracked windshield was invalid regardless of officer’s belief that pertinent statute authorized the stop; Court stated that “for Fourth Amendment purposes in determining whether a stop was proper based on an alleged violation of the law, it is critical that courts distinguish between a mistake of fact, which may provide the objective ground to justify a traffic stop, and a mistake of law, which cannot be used to justify a stop.”) (emphasis by the Court); Leslie v. State, 108 So.3d 722, 723 (Fla. 5th DCA 2013) (“An officer’s mistake of law as to what constitutes a traffic violation [in this case, as to whether section 316.294 requires a rearview mirror] cannot provide reasonable suspicion.”). [Note that Leslie is discussed at page 38 of this Update.] However, prosecutors should not read too much into this ruling. In Heien, as well as in the Florida cases now effectively overruled, the legal interpretation at issue had not yet

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been decided by the appellate courts. But once the courts have provided a binding interpretation, it is unlikely that any subsequent mistake of law relying on the previously unclear interpretation would be deemed a “reasonable” mistake of law. Nevertheless, new mistakes of law will inevitably occur; and prosecutors will now be in much better position to argue that any particular mistake of law was “reasonable.”

V. Stops Based on Improper Left Turns (new topic) State v. Y.Q.R., 50 So.3d 751 (Fla. 2d DCA 2010): Here, the Court addressed the language of section 316.151(1)(b), dealing with improper left turns. The Court ultimately held that this statute only requires the driver performing a left turn to make the turn from “the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle,” and does not condition the lawfulness of a stop for violating this statute on whether the turn impacts traffic. The Court distinguished this statute from other statutes which have been interpreted to require that the violation affect traffic in order to constitute grounds for a lawful stop. Specifically, the Court recognized that the failure to signal a turn can constitute a traffic offense under section 316.155 only if the turn affects traffic, as was held in State v. Riley, 638 So.2d 507, 508 (Fla.1994). Also, the Court recognized that under section 316.1515, a U-turn can amount to a traffic offense only if it interferes with traffic or cannot be made safely, as was held in Bender v. State, 737 So.2d 1181, 1181 (Fla. 1st DCA 1999). [Note that the Court did not make any specific reference to section 316.089, which is the statute governing failure to maintain a single lane, which statute also has generally been held to require that the violation affect traffic – but see, Yanes v. State, 877 So.2d 25 (Fla. 5th DCA 2004) (finding that traffic need not be affected if the deviation from the lane is sufficiently significant).] The Court also acknowledged that under the statute before it, a proper left turn is required only “[w]henever practicable” (and note that this language is similar to the language in the statute governing failure to maintain a single lane). However, the Court stated: “This sentence more likely pertains to those situations in which it is not practicable for a vehicle to remain within the turn lane while completing the turn.”

W. Stops Based on Excessive Noise Statute (new topic) State v. Catalano, 60 So.3d 1139 (Fla. 2d DCA 2011), affirmed, 104 So.3d 1069 (Fla. 2012): Second District Court of Appeal holds, and Florida Supreme affirms, that section 316.3045 concerning excessive sound coming from a vehicle is unconstitutional due to use of term “plainly audible” and it not being content neutral by excluding commercial or political speech. Montgomery v. State, 69 So.3d 1023 (Fla. 5th DCA 2011), State v. Conley, 98 So.3d 108 (Fla. 2d DCA 2012), and State v. Lockett, 101 So.3d 1275 (Fla. 4th DCA 2012): In each of these cases, a traffic stop was made based on the excessive noise statute which was later deemed unconstitutional in Catalano, supra. Each of the courts in these cases applied the good faith exception to the exclusionary rule and held that the evidence obtained as a result of the stop would not be suppressed. Each court found that a reasonable police officer would not have known at the time that the noise statute would later be found unconstitutional, and that the officer acted in an objectively reasonable manner.

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X. Stops Based on Rearview or Sideview Mirror Violation (new topic) Leslie v. State, 108 So.3d 722 (Fla. 5th DCA 2013): Police officer’s mistaken belief that the absence of a center rearview mirror on a vehicle constituted a traffic violation did not furnish reasonable suspicion for officer to initiate traffic stop of defendant’s vehicle. Court noted that section 316.294 requires only that a vehicle have “a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of the motor vehicle.” The statute does not specifically require a center rearview mirror as long as the vehicle has one or more side mirrors that can meet this requirement. Here, the evidence was too tenuous as to show that the vehicle’s side mirrors could not meet the statutory requirement. Court also stated: “An officer’s mistake of law as to what constitutes a traffic violation cannot provide reasonable suspicion.” As to this proposition of law, it has now been effectively overruled by Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). Heien was discussed at pages 33-37 of this Update in the context of the topic “Stops Based on a ‘Mistake of Fact’ or ‘Mistake of Law.’ ” Springer v. State, 125 So.3d 271 (Fla. 4th DCA 2013): Traffic stop of defendant on the basis that his vehicle was missing a side-view mirror was illegal. Although section 316.294 requires that a vehicle have a mirror capable of viewing 200 feet behind the vehicle, the vehicle here had a rearview mirror, and the absence of a single mirror on the exterior of the vehicle neither violated the statute nor rendered the vehicle unsafe by an objectively reasonable standard. Additionally, section 316.2954(2) requiring rearview mirrors on both sides of vehicle if rear window covered with material making it non-transparent and the officer’s opinion that the vehicle was unsafe did not validate stop due to insufficient testimony of non-transparency. Y. Stops Based on Window Tint Violation (new topic) State v. Coley, 157 So.3d 542 (Fla. 4th DCA 2015): Officer was justified in stopping vehicle based on his observation that defendant’s side windows were so heavily tinted that he could not see the occupant in broad daylight. As the Court noted, section 316.2953 provides that the restriction as to sunscreen material on side windows is such that “a light transmittance of at least 28 percent in the visible light range” is required. The officer testified that he knew that the law required a minimum threshold of 28% light transmittance and he suspected that the tint was below the level required. Thus, the officer’s belief, that a tint that was too dark to allow one to see the occupant was illegal, was not a mistake of law; in fact, his belief was consistent with prior cases from the Fourth District, to-wit: State v. Sarria, 97 So.3d 282, 283-84 (Fla. 4th DCA 2012) and Poliar v. State, 898 So.2d 1013, 1014 n. 2 (Fla. 4th DCA 2005). Z. Stops Based on Fleeing or Eluding Offense (new topic) Henderson v. State, 88 So.3d 1060 (Fla. 1st DCA 2012): Although Court found that State could not justify stop based on fellow officer rule (because stopping officer did not testify as to why he stopped the vehicle), Court nevertheless upheld validity of stop because defendant initially refused to stop after officer had directed him to do so; thus stop was still valid based on defendant’s fleeing or eluding. Court cited previous cases indicating that regardless of the

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legality of the initial stop (or attempted stop), the statutory offense of fleeing and eluding does not require the lawfulness of the police action as an element of the offense. AA. Stops Based on Speeding Violation (new topic) Young v. State, 33 So. 3d 151 (Fla. 4th DCA 2010): Court finds that officer was justified in stopping vehicle based on officer's trained observation of vehicle’s speeding. Court quoted from State v. Allen, 978 So.2d 254, 255 (Fla. 2d DCA 2008), that “police may stop a vehicle for a speeding violation based on the officer's visual or aural perceptions and that verification of actual speed by the use of radar equipment or clocking is not necessary to justify the stop.” Gallardo v. State, 204 So.3d 979 (Fla. 5th DCA 2016): Here, Fifth DCA reaffirmed the principle in Young and Allen, supra, that an officer may stop a vehicle based on observations of speeding without the aid of radar or clocking. The Court distinguished its prior ruling in DHSMV v. Roberts, 938 So.2d 513 (Fla. 5th DCA 2006) (where arrest report failed to specify basis for determination that defendant was speeding, majority opinion held – over vigorous dissent – that report failed to provide valid basis for stop), because here the officer testified in substantial detail as to her vantage point and her opportunity to observe the excessive speed. BB. Stops Based on Slow Speed/Impeding Traffic (new topic) Agreda v. State, 152 So.3d 114 (Fla. 2d DCA 2014): Here, a detective stopped a vehicle based on the fact that it was driving at a speed of 45 mph in the right hand curb lane on a highway with a 65 mph speed limit with a line of five vehicles driving behind the suspect vehicle. The detective testified that that the car was impeding the flow of traffic. The trial court found the stop to be proper but the Second District Court of Appeal reversed. The Court noted that section 316.185(5) provides that “[n]o person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” The Court then stated:

The detective recounted that five vehicles were following behind the car. But he also acknowledged that there were two lanes headed in that direction, separated by a median from two lanes in the other direction. The left lane was empty, traffic was otherwise light, and the detective himself had no difficulty pulling past the vehicles to reach the lead car. While the posted speed was 65 miles per hour, the minimum speed on this part of the highway was 40 miles per hour. See § 316.183(2). Thus, at 45 miles per hour, the subject vehicle was traveling within the permissible range. Manifestly, the vehicle was not being driven at such a slow speed as to impede or block the normal flow of traffic in violation of section 316.183(5).

152 So.3d at 116. The Court also rejected the argument that the stop could be justified based on a “legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence.” That issue was previously addressed at page 18 in the context of the topic involving the “unusual driving” cases.

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CC. Stops Based on Driving Without Headlights Activated (new topic) State v. Proctor, 161 So.3d 409 (Fla. 5th DCA 2014): Fifth District held that driving at 3:30 a.m. on a deserted street without headlights for a brief period of time constituted a violation of section 316.217(1)(a), Florida Statutes, and was sufficient to warrant the stop. The trial court’s contrary conclusion based on Payne v. State, 654 So.2d 1252 (Fla. 2d DCA 1995) was erroneous where Payne had relied on a legal proposition (pretextual stop) that had been overruled in Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) and Holland v. State, 696 So.2d 757 (Fla.1997) (each holding that reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop, but rather on the validity of the basis asserted by the officers involved in the stop). DD. Stops Based on Failing to Stop at Stop Line at Stop Sign (new topic) State v. Daniels, 158 629 (Fla. 5th DCA 2014): In this case, a deputy pulled over a vehicle in which the defendant was a passenger because, when the vehicle stopped near a stop sign, “[m]ost of the front tire and the whole hood was in front of the stop bar.” The deputy stopped the vehicle based on a violation of section 316.123(2)(a) which makes it a noncriminal infraction to fail to “stop at a clearly marked stop line” when “approaching a stop intersection indicated by a stop sign.” The defendant filed a motion to suppress, contending that the vehicle was stopped “at” the line because the front tires were on the line, leaving the rest of the vehicle behind it. The trial court agreed and granted the motion. On appeal, the Fifth District Court of Appeal disagreed and held that, as matter of apparent first impression, the requirement to stop “at” a stop line means that the vehicle must to stop when its front bumper reaches the stop line. The Court noted that “the apparent purpose of the statute is to require a vehicle to stop before it is in a position where it could impede or hit pedestrians who might be in a crosswalk, or cross-traffic that could be in an intersection.” 158 So.3d at 131. Accordingly, the Court agreed with the State’s contention that “the statute, properly interpreted, requires a vehicle to stop before any part of the automobile crosses the line.” Id. The Court also rejected the defendant’s contention that the word “at” is defined to indicate the “presence or occurrence in, on, or near.” Merriam–Webster's Collegiate Dictionary 72 (10th ed. 2000). The Court first noted that the few out-of-state courts interpreting similarly worded statutes have disagreed with this contention. More importantly, the Court stated:

While a dictionary may, as Daniels contends, be a reliable resource to determine the meaning of a word used in a statute, like any other tool of statutory construction, its definition is not conclusive. Miele v. Prudential–Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). A stop line protects other motorists and pedestrians only if a vehicle stops when its front bumper reaches that line. This is particularly true because vehicles vary greatly in length. If we construe the statute otherwise, a big rig truck would not violate the statute even if its midsection is straddling the stop line and its tractor is protruding into the intersection. The Legislature could not have intended that potentially perilous result. See Binkowski, 68 Cal.Rptr.3d at 744.

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Id. (Footnote omitted). Note that section 316.123(2)(a) does not appear to apply to a driver approaching a red light (as opposed to approaching a stop sign). The applicable statute in the red light scenario appears to be section 316.075(1)(c)1., which states: “Vehicular traffic facing a steady red signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection. . .” EE. Stops Based on Discrepancy in Color of Vehicle with Color Indicated in Registration (new topic) State v. Teamer, 151 So.3d 421 (Fla. 2014): This case settled a conflict in the DCA’s on the issue of whether an officer’s observation that a vehicle’s color is different than the color reflected in the vehicle’s registration gives rise to a reasonable suspicion that the vehicle is stolen or that the plates were swapped from another vehicle. Ultimately, over a vigorous dissenting opinion, the majority opinion held that such observation would not provide the basis for a valid traffic stop. The difference between the opinions was based largely on their opposing viewpoints of the standard of reasonable suspicion. In particular, the majority opinion stated:

[T]he sole basis here for the investigatory stop is an observation of one completely noncriminal factor, not several incidents of innocent activity combining under a totality of the circumstances to arouse a reasonable suspicion—as was the case in Terry. The discrepancy between the vehicle registration and the color the deputy observed does present an ambiguous situation, and the Supreme Court has recognized that an officer can detain an individual to resolve an ambiguity regarding suspicious yet lawful or innocent conduct. Wardlow, 528 U.S. at 125, 120 S.Ct. 673. However, the suspicion still must be a reasonable one. Popple, 626 So.2d at 186 (“Mere suspicion is not enough to support a stop.”). In this case, there simply are not enough facts to demonstrate reasonableness. Like the factors in [State v.] Johnson, [561 So.3d 1139 (Fla. 1990),] the color discrepancy here is not “inherently suspicious” or “unusual” enough or so “out of the ordinary” as to provide an officer with a reasonable suspicion of criminal activity, especially given the fact that it is not against the law in Florida to change the color of your vehicle without notifying the DHSMV. The law allows officers to draw rational inferences, but to find reasonable suspicion based on this single noncriminal factor would be to license investigatory stops on nothing more than an officer’s hunch. Doing so would be akin to finding reasonable suspicion for an officer to stop an individual for walking in a sparsely occupied area after midnight simply because that officer testified that, in his experience, people who walk in such areas after midnight tend to commit robberies. Without more, this one fact may provide a “mere suspicion,” but it does not rise to the level of a reasonable suspicion. . . .

151 So.3d at 427-428. (Emphasis added). Contrarily, the dissent stated (correctly, in the opinion of the author of this Update):

Here, the officer's suspicion was aroused by the discrepancy between the color of the vehicle driven by Teamer and the color that was indicated in the registration information

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for the vehicle associated with the license tag on Teamer's vehicle. Because of this discrepancy, a reasonable officer could suspect that the license tag may have been illegally transferred from the vehicle to which it was assigned. Although the color discrepancy was not necessarily indicative of illegality, it constituted “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Navarette, 134 S.Ct. at 1687 (quoting Cortez, 449 U.S. at 417–18, 101 S.Ct. 690). The color discrepancy was “something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). I would therefore conclude that the officer had the “minimal level of objective justification” necessary to conduct a stop for the purpose of further investigating the discrepancy. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Delgado, 466 U.S. at 217, 104 S.Ct. 1758). * * * * The crux of the majority's decision in this case is its conclusion that finding “reasonable suspicion based on this single noncriminal factor would be to license investigatory stops on nothing more than an officer's hunch.” Majority op. at 428. This conclusion suggests a categorical rule that is not consistent with the framework established in the Supreme Court's Fourth Amendment jurisprudence. Although the totality of the circumstances must be taken into account in every case, that does not mean that an officer’s reliance on a “single noncriminal factor” – such as the vehicle color discrepancy here – is the equivalent of a “hunch.” The majority is wholly unjustified in categorizing an undeniably objective factor as a hunch. The majority’s “effort to refine and elaborate the requirements of ‘reasonable suspicion’ in this case creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment.” Sokolow, 490 U.S. at 7-8.

Id. at 432-433. (Emphasis added). FF. Stops Based on Driving or Passing on Left Side of the Roadway in No-Passing Zone (new topic) Lomax v. State, 148 So.3d 119 (Fla. 1st DCA 2014): Here, an officer testified that the Defendant was traveling down a two-lane road separated by solid double yellow lines. The officer observed the car swerve, with both the driver's side front and back tires traveling over the double yellow lines, so that the vehicle was partially in the oncoming lane of traffic. The officer then conducted a traffic stop and wrote appellant a ticket for violating a traffic control device as prohibited by section 316.047, Florida Statutes. The officer conceded that when the Defendant crossed the double yellow lines, he was not attempting to pass another car, there were no oncoming cars or cars in front of the Defendant, and that the Defendant did not interfere with the safe operation of any vehicle. Defendant filed a motion to suppress the stop, arguing that his briefly swerving two tires over the double yellow lines did not constitute violating a traffic control device. Specifically, he argued the purpose of the double yellow lines was to prohibit

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passing, not brief swerving. The trial court denied the motion and the First District Court of Appeal affirmed. The Court agreed with the State that section 316.0875 prohibits both passing and driving to the left of the pavement striping in no-passing zones. Accordingly, the Court found that “the officer's testimony that he observed appellant’s front and back driver’s side tires travel over the solid double yellow lines, so that the vehicle was partially in the oncoming lane of traffic, was competent, substantial evidence that appellant violated the traffic control device of double yellow lines. Thus, there was competent, substantial evidence that appellant violated section 316.0875 by ‘driv[ing] . . . on the left side of any pavement striping designed to mark such no-passing zone.’ ” 148 So.3d at 121. The Court distinguished cases involving section 316.089, the failure to maintain a single lane statute. As the Court stated, contrary to section 316.089, which prohibits leaving a lane unless it can be done “with safety,” section 316.0875 “does not permit crossing solid double yellow lines even if it can be done safely, unless one of the exceptions in subsection (3) applies. Instead, it states ‘no driver shall at any time drive . . . on the left side of any pavement striping designed to mark such no-passing zone.’ § 316.0875(2), Fla. Stat.” Id. at 122. (Emphasis by the Court). GG. Stops Based on Obscured License Tag (new topic)

1. Matters external to the tag (e.g., trailer hitch, bicycle rack, dirty rag, or wires hanging from the tag light)

English v. State, 191 So.3d 448 (Fla. 2016): In this case, the Florida Supreme Court settled a conflict over the proper interpretation of section 316.605(1). Here, the Defendant’s vehicle was stopped by officers after they noticed that the vehicle’s tag light, along with its attached wires, was hanging down in front of the license plate, obstructing the officers’ view of the plate and rendering at least one letter on it unreadable. The tag became readable, only momentarily, when the vehicle turned and caused the wires to shift. However, after the turn, when the wires shifted back, the view of the tag was obstructed again. Based on the single fact that the tag became unobstructed temporarily during a turn, the trial court granted defendant’s motion to suppress. The State appealed to the Fifth District Court of Appeal and that Court reversed. The Court noted that section 316.605(1) requires that “the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.” 148 So.3d at 530. (Emphasis added). Thus, as the Court stated, “[b]ased on the plain reading of the statute, the alphanumeric designation on the license plate must be plainly visible at all times.” Since it was not, the stop was proper.

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As support for its ruling, the Fifth District Court cited to Wright v. State, 471 So.2d 155, 156-57 (Fla. 3d DCA 1985) (officer charged with enforcing motor vehicle laws had the duty and authority to investigate why a vehicle that was parked in the roadway had its license tag partially obscured with a dirty rag, in violation of the law). The Court also acknowledged a contrary case, without certifying conflict, stating: “But see Harris v. State, 11 So.3d 462, 463–64 (Fla. 2d DCA 2009) (finding that police officers who were unable to read defendant's license plate because of a trailer hitch properly attached to the vehicle lacked authority to perform a traffic stop, because matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like were not “other obscuring matter”).” Id. Although the Fifth District did not specifically certify conflict with the Second District’s Harris case, the defendant sought certiorari review based on the alleged conflict – and the Florida Supreme Court accepted review. The Supreme Court ultimately sided with the Fifth DCA, stating:

The plain language of section 316.605(1) requires that a license plate be “clear and distinct” and “free from defacement, mutilation, grease, and other obscuring matter”; it does not suggest that matter external to the license plate may constitute a permissible obstruction under the statute. Therefore, we hold that section 316.605(1) does not distinguish between obscuring matter that is on or external to the license plate. Accordingly, we conclude that a tag light, hanging down in front of a license plate, obscuring its alphanumeric designation, constitutes a violation of section 316.605(1).

191 So.3d at 449. Note that at the time of the facts of the English case, section 316.605(1) required that “all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word ‘Florida,’ the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible at all times 100 feet from the rear or front.” (Emphasis added). However, effective January 1, 2016, the statute was amended to eliminate the words “and other identification marks upon the plates regarding the word ‘Florida.’ ” See, Ch. 14–216, § 14, at 2787, Laws of Fla. The Florida Supreme Court in English did not address this amendment; and it probably would have had no impact of the result in that case in any event. But how should the statute should be interpreted to address the issue of a potentially obscuring license plate frame – either before or after the amendment? That issue is considered next.

2. License plate frames which obscure the word “Florida” or other words on the tag (new sub-topic)

Prior to 2005, section 316.605(1) required that all vehicles:

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. . . display the license plate . . . assigned to it by the state . . ., with all letters, numerals, printing, writing, and other identification marks upon the plates clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

(Emphasis added). Based on the pre-2005 wording, the Fifth District Court of Appeal in State v. St. Jean, 697 So.2d 956 (Fla. 5th DCA 1995) agreed with the trial court that “section 316.605(1) does not require the county name be ‘plainly visible’ because it is not an essential ‘identification mark’ on the state’s license plate.” 697 So.2d at 957. The Court explained:

The state has cited no authority for the proposition that obscuring the county name in such a fashion violates section 316.605. The state relies only on the language of the statute. We agree that in using the term, “identification mark” as applied to state license plates in section 316.605(1), the legislature did not intend to include the name of the state and county at the top and bottom of the plate that identify the name of the state or county. Although the language of section 316.605 is broad, the overall statutory scheme suggests that the “identification marks” that must be visible and legible are those that “identify” the “registration.” See § 320.06(1)(b), (3)(a) (1995).”

Id. In 2005, ten years after the ruling in St. Jean, the legislature amended section 316.605(1) as follows:

“. . . with and all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word ‘Florida,’ the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.”

Ch. 05–164, § 39, at 1638–39, Laws of Fla. (that is, the word “with” was removed and the underlined words were added). But no Florida appellate court addressed the amendment as to this issue until thirteen years later in the Pena case, discussed next. State v. Pena, 247 So.3d 61 (Fla. 3d DCA May 9, 2018): This case dealt with section 316.605(1) as it existed after the 2005 amendment to the statute but prior to the January 1, 2016 amendment.

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Here, an officer stopped the defendant’s vehicle when the officer observed that the rear license plate on the defendant’s car had a metal frame which obscured the words “MyFlorida.com” from the top portion of the license plate and “Sunshine State” from the bottom portion. The trial court in Pena held that the stop of the defendant’s car based was illegal and suppressed his confession and the search of his car following the stop. The trial court based its decision on the ruling in. St. Jean, supra. The trial court analogized the obscured county name in St. Jean to the obscured “MyFlorida.com” and “Sunshine State” in the Pena case, and therefore found that the police did not have a reasonable suspicion to stop the vehicle. However, the Third District Court of Appeal in Pena reversed, finding the stop to be proper. The Court explained:

While we are less sure than St. Jean about the legislature's intent in 1995, it doesn’t matter here because in 2005 the legislature made its intent clear when it amended section 316.605(1) to define what it meant by “other identification marks.” The 2005 amendment clarified that the “other identification marks” in section 316.605(1) were those on the license plate “regarding the word ‘Florida,’ the registration decal, and the alphanumeric designation,” . . .

247 So.3d at 63. The Court then stated:

Here, the suppression hearing evidence was undisputed that the word “Florida” was obscured by the frame on Pena’s tag. The word “Florida” on Pena’s tag was not clear and distinct and free from obscuring matter. In 2015, unlike the 1997 version of section 316.605(1) in St. Jean, obscuring of the word “Florida” violated the tag-obstruction statute.

Id. at 64. The Court then commented:

We share the fifth district and the trial court’s concern that license plate rims and frames are “a common practice of long-standing among the citizens of our state”; “are frequently supplied by car dealers”; and “many otherwise law abiding citizens install them specifically to show allegiance to a club, fraternity, college or sports team or, as a means of other self-expression.” St. Jean, 697 So.2d at 957. But the legislature gets to make the laws that govern our public roads and highways [citation omitted], and it has done so clearly and unambiguously by prohibiting the obscuring of the word “Florida” on state license plates.

Id. In a footnote, the Court acknowledged the 2016 amendment to the statute but the Court stated: “Of course, the probable cause determination is made based on the facts and law at the time of

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the arrest [citations omitted] so we only look to the 2015 version of section 316.605(1) for purposes of determining whether Detective Sanabria’s stop of Pena’s car was lawful.” Id. at n.1. As previously noted, effective January 1, 2016, the legislature again amended section 316.605(1). The changes were as follows:

“. . . and all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.”

Ch. 14–216, § 14, at 2787, Laws of Fla. (that is, the words “and other identification marks upon the plates regarding the word ‘Florida,’ ” were removed). The intent of the legislature in amending the statute is subject to dispute. On the one hand, the House of Representatives Final Bill Analysis for CS/CS/HB 7005 (the bill that eventually became Ch. 14-216) contains the following very specific comment:

The bill removes the requirement that the word “Florida” be plainly visible and legible on the license plate. This is intended to allow the use of license plate frames that might otherwise partially obscure the word ‘Florida’ when it appears at the top or bottom of the license plate.

See, White v. State, 714 So.2d 440, 443, n.5 (Fla. 1998) (a bill’s staff analysis is persuasive but not conclusive as to legislative intent). Of course, the Bill Analysis itself also states: “This document does not reflect the intent or official position of the bill sponsor or House of Representatives.” On the other hand, consider the impact of the published circuit opinion in State v. Castro-Lorenzo, 26 Fla. L. Weekly 393a (Fla. Cir. Ct., 16th Cir. [Monroe County], May 18, 2018), which was decided just nine days after the ruling in Pena, supra. In Castro-Lorenzo, a black border surrounding the tag at issue covered “myflorida.com” on the top of the plate, and either a county name or “Sunshine State” on the bottom. The circuit court first acknowledged the ruling in St. Jean, supra, but then noted the 2005 amendment and the Pena case, supra, as follows:

The statute was amended in 2005 to clarify that “identification marks” were those on the license plate “regarding the word ‘Florida,’ the registration decal, and the alphanumeric designation.” State v. Marcelo Pena, [247 So.3d 61 (Fla. 3d DCA May 9, 2018)]. Under the 2005 version of the statute, obscuring the word “Florida” violated the tag-obstruction statute. Id.

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The circuit court then addressed the January 1, 2016 amendment as follows:

The plain and ordinary meaning of the language, “all letters, numerals, printing, writing, the registration decals, and the alphanumeric designation shall be clear . . .” is that each of these items cannot be obscured in any manner. In this case, letters, printing and writing were obscured by the license plate frame. The language in the statute is broad and is not limited to the alphanumeric designation or the registration decal. This court shares the concerns raised by the appellate courts that license plate frames are common among law-abiding citizens, but the court is constrained to follow the plain language of the statute.

“When the statutory language is clear or unambiguous, this Court need not look behind the statute's plain language or employ principles of statutory construction to determine legislative intent.” English v. State, 191 So. 3d 448, 450 (Fla. 2016). Based on this clear and unambiguous reading, the plain and ordinary meaning must control and “all” means “all.” The Defendant’s license plate frame obstructed letters, printing and writing in violation of the statute which formed the basis for a valid traffic stop.

(Emphasis added). Note that the circuit court did not acknowledge the House of Representatives Final Bill Analysis referenced above. For almost a year, the circuit court’s (non-binding) decision in Castro-Lorenzo was the only published ruling on the effect of the 2016 amendment. But in April of 2019, the Fourth District Court of Appeal decided the Morris case, and that case is discussed next. State v. Morris, 2019 WL 1781683 (Fla. 4th DCA April 24, 2019): The facts of this case occurred after the January 1, 2016 amendment to section 316.605(1), although the Court’s ruling did not appear to be affected by the amendment. In Morris, the stop was made because the words “Sunshine State” (at the bottom of the license plate) and “MyFlorida.com.” (at the top of the license plate) were partially obscured by the frame of the plate. The trial court granted the defendant’s motion to suppress, finding “that the word ‘Florida’ [was] not obscured.... [E]verything that needs to be identified [was] identifiable,” even with the frame.” 2019 WL 1781683, at *1. In addressing this issue on appeal, the Fourth District Court of Appeal first presented a photo of the tag in question. It appears to this author that the word “Florida” is clearly legible despite being partially covered by the frame (although the words “Sunshine State” do not appear to be as clearly legible because the lower half of those words are obscured by the frame of the plate). The State argued on appeal, as it did at the trial level, that “the plain language of section 316.605(1), Fla. Stat., requires ‘all’ writing on the license plate to be clear and free from ‘obscuring matter.’ ” Id. at *2. The defendant argued that the trial court’s finding was supported by competent, substantial evidence and should not be disturbed on appeal.

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The Fourth District agreed with the defendant and the trial court – but in a manner that would likely justify stops in other situations where the obscuring of the words is more substantial. That is, the Court appeared to indicate that the statute does include all words on a tag, particularly the word “Florida” at the top of a tag – but only if those words are truly obscured, i.e., not legible. Specifically, the Court stated:

Here, all the letters and words on the license plate were visible within 100 feet. In fact, the officer who stopped the defendant testified in deposition that “he didn’t have any trouble” reading the word “Florida.” The trial court specifically found that “everything that needs to be identified is identifiable,” even with the frame. . . .

Id. Accordingly, the Court affirmed the trial court’s suppression of the stop. And note again that as with the circuit court in Castro-Lorenzo, the Fourth District in Morris did not address the House of Representatives Final Bill Analysis to Bill 7005. Certainly, the “obscured tag by license plate frame” issue is complicated by the continual amendments to section 316.605(1). And, of course, no published Florida opinion has yet addressed the impact of the House of Representatives Final Bill Analysis to Bill 7005. Nevertheless, the end result of Pena and Morris (as well as the reasoning in Castro-Lorenzo) appears to be as follows: A license plate frame which obscures the word “Florida” at the top of the tag (and perhaps even the words “Sunshine State” at the bottom of the tag, although this is less clear) can constitute a basis for a traffic stop pursuant to section 316.605(1) – but only where the words are not actually legible. In Pena, it was undisputed that the word “Florida” was obscured by the frame on Pena’s tag such that the word “Florida” was “not clear and distinct and free from obscuring matter.” Pena, at 247 So.3d at 64. Contrarily, in Morris, the trial court found that “ ‘everything that needs to be identified is identifiable,’ even with the frame” – including the word “Florida” – and the Fourth District concluded that this finding was supported by competent, substantial evidence. 2019 WL 1781683, at *2. In other words, the result in Morris would probably have been different if, as in Pena, the word “Florida” was not clearly visible. Thus, it readily appears that the specific facts will control on a case by case basis. HH. Stops Based on Improper Entry of Vehicles onto Adjacent Highways from Adjoining Business Locations and Parking Lots (new topic) State v. Nelson, 183 So.3d 1074 (Fla. 5th DCA 2015): This case deals with the interpretation of section 316.125, Florida Statutes, which governs entry of vehicles onto adjacent highways from adjoining business locations and parking lots. The statute reads in its entirety as follows:

(1) The driver of a vehicle about to enter or cross a highway from an alley, building, private road or driveway shall yield the right-of-way to all vehicles

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approaching on the highway to be entered which are so close thereto as to constitute an immediate hazard. (2) The driver of a vehicle emerging from an alley, building, private road or driveway within a business or residence district shall stop the vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across the alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon and shall yield to all vehicles and pedestrians which are so close thereto as to constitute an immediate hazard. (3) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.

In this case, deputies pulled over three separate vehicles because the vehicles in each case failed to stop before crossing over a sidewalk or sidewalk area situated over the driveways adjacent to the highway. The trial court granted each motion after concluding that there was no requirement in section 316.125 to stop before entering the highway because there was no vehicular or pedestrian traffic present in the area at the time. On appeal, the State contended that the deputies legally stopped each vehicle because the statute requires vehicles to stop before crossing over driveways containing sidewalks or sidewalk areas regardless of pedestrian or vehicular traffic in the area. The Fifth District agreed with the State and disagreed with the trial court, stating: “The trial court's interpretation may be correct if the provisions of subsection one are considered in isolation to the other provisions of the statute. But subsection one does not apply to business or residential districts, subsection two does, and it is undisputed that the events in all three cases occurred in a business district. The trial court's constricted interpretation of the entire statute renders meaningless the provisions of subsection two and, thus, offends well-established principles of statutory construction.” 183 So.3d at 1077. Applying the correct interpretation, the Court stated: “Looking to the provisions of subsection two, we see the requirement that the driver stop before ‘driving onto a sidewalk or onto a sidewalk area extending across the . . . driveway.’ Proper consideration of this statutory provision and the plain and ordinary meaning of the words used reveal with clarity that drivers must stop before traversing a sidewalk or sidewalk area to enter an adjacent highway.” Id. However, as the Court noted: “The trial court never addressed the factual issue of whether a sidewalk or sidewalk area extends over the driveways at each location. It appears that the trial court's erroneous interpretation of section 316.125 got in the way, and so it did not. We have removed that obstacle so the trial court can now resolve the issue on remand free of obstruction.” Id. at 1078.

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II. Stops Based on Careless Driving (new topic) Baden v. State, 174 So.3d 494 (Fla. 3d DCA 2015): Police officer's stop of scooter driver was justified by driver's violation of traffic laws prohibiting careless driving; driver hit curb several times while driving scooter at 2:00 a.m., pedestrian who was walking next to scooter would flinch and step further away each time driver hit curb, and officer was afraid that driver was either going to enter sidewalk and strike pedestrian or run into rear of vehicle parked approximately 25 to 35 feet ahead in driver's lane of travel. Court also found stop proper under reasonable suspicion of impairment theory. JJ. Stops Based on Observations of Impairment from Earlier that Night or Morning Even Though No Improper Driving Currently Observed (new topic) Jacobson v. State, 227 So.3d 712 (Fla. 1st DCA 2017): In this case, an officer responded to a call of a “potential vehicle accident” outside a bar. Upon arrival, he encountered a female (the defendant) in an “extremely intoxicated” condition standing next to her vehicle. Although the vehicle was damaged, the officer determined that the damage was pre-existing so there was no basis to arrest the defendant. The officer warned the defendant that if he saw her driving, she would be arrested for DUI. A friend of the defendant’s then came out of the bar and offered to take charge of her, and the two went inside the bar.

At the point, in the interest of public safety, the officer parked his patrol car across the street in plain view. He observed the defendant walk toward her car on two occasions, but she turned around when she saw the officer’s patrol car. The officer had to leave the area when he was dispatched to another call. Just over an hour later, the officer returned to the area in order to check on the defendant. As he approached, he saw the defendant’s car pull onto the road. He looked in the car and saw that the defendant was driving, so he followed her briefly. The officer saw no improper or erratic driving. He became concerned when it appeared that she was about to get on the interstate. Knowing the defendant’s condition from his previous observations of her, the officer did not want her on the interstate at those speeds, so he stopped her. The trial court denied the defendant’s motion to suppress based on an allegedly invalid stop and the First District Court of Appeal agreed. The Court found that the stop was supported by a founded suspicion that defendant was driving under the influence even without any observations of a traffic infraction or erratic driving. The Court noted the officer’s testimony that based on his training and experience, it would have been impossible for the defendant to have sobered up within the hour since he saw her outside the bar. The Court also rejected the defendant’s argument that the officer’s initial observation of the defendant’s intoxication should have been corroborated by field sobriety exercises. In fact, there would have been no basis or reason to conduct field sobriety exercises because, as the Court pointed out, the defendant had not been driving at that time.

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CHAPTER III, Observations and Statements at the Scene B. The Effect of the Miranda “Custodial Interrogation” Doctrine on Observations and Statements at the Scene — Basic Propositions State v. Hinman, 100 So.3d 220 (Fla. 3d DCA 2012): Upon a lawful stop for an infraction, as a matter of safety and customary policy, officer immediately asked driver defendant whether she had any weapons or drugs in the car. Defendant admitted to pills in her possession. In determining whether the admission and the search based thereon was valid, the Court held that in the case of a lawful traffic stop such as this, persons temporarily detained are not “in custody” for purposes of Miranda pursuant to Berkemer v. McCarthy, 468 U.S. 42 (1984). Young v. State, 2019 WL 1524835 (Fla. 1st DCA April 9, 2019): An investigatory stop is not automatically converted into an arrest, which would constitute being in custody for Miranda purposes, when an officer draws a weapon and directs the suspect to lie on the ground; instead, the police are entitled to take such action as is reasonable under the circumstances. Nor is such a stop transformed into a custodial interrogation when police ask the person if he or she has any weapons or drugs, as such inquiry is permissible. Accordingly, defendant in this case not in custody for Miranda purposes, when deputy asked him after high-speed chase what happened and whether there was anyone else in automobile, although deputy drew his weapon and ordered occupant to the ground as occupant was walking toward deputy; occupant was not summoned for interrogation, questioning took place during lawful investigatory stop, deputy did not know what, if any, involvement defendant had and whether there were others around, deputy was only officer at scene and was concerned for his safety, deputy’s actions and questions were limited to ensuring his safety, and occupant was not confronted with any evidence of his guilt. C. The Effect of the Miranda “Custodial Interrogation” Doctrine on Observations and Statements at the Scene — Complicating Factors

3. The Impact of the Confusion Doctrine on the Issue of When to Provide Miranda Warnings

Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010): This case involved two similar certified questions on the same general issue. The general question was whether the defendants’ refusal to submit to a breath test should have been suppressed due to their mistaken belief that they had a right to counsel before deciding whether to submit to a breath test. Furthermore, in both cases it is clear that (1) Miranda warnings had not been read to the defendants prior to the request for the breath test and, thus, any desire for counsel was not premised on law enforcement advice, and (2) law enforcement did not eliminate or correct the defendants’ confusion or mistaken belief by explaining to the defendants’ that they did not have a right to an attorney at that time. Additionally, defendant Kurecka’s attorney did have the opportunity and did argue to the jury that the defendant refused to take the breath test due to his (mistaken) desire for an attorney.

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The Kurecka Court then did a detailed analysis of the derivation of the confusion doctrine and its application in other states and in the county and circuit courts of Florida. It then looked at the legislative intent of the implied consent statutes and held:

Similarly, Florida's implied consent statute does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statute requires only that the person be told that his failure to submit to the test will result in a suspension of the privilege to drive for a period of time and that a refusal to submit can be admitted at trial…The licensed driver in Florida, having already consented to the test, is thus not entitled to secure the advice of an attorney. Accordingly, excluding evidence based on a suspect's misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida's implied consent law.

67 So.3d at 1060. The Court further held that since no statutory or constitutional provisions were violated by law enforcement, suppression was not warranted. It also noted that nothing prevented the defendant from arguing the defendant’s reason for refusal contrary to the State’s consciousness of guilt argument. Finally, the Court stated: “Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida.” Id. at 1061. Despite this favorable ruling for the State, there is some language in the opinion that may be troubling, although the extent of such is a subject of debate between the authors of this Update. First, the Court does not outright reject the confusion doctrine in Florida. In fact, the Court seemed to leave open the possibility of its application if Miranda rights are read before or during the reading of the implied consent law:

. . . And though we might agree that the confusion doctrine could properly be applied in circumstances where law enforcement created a defendant's confusion about the right to counsel for breath testing, the cases before us do not present those circumstances. Here, the undisputed facts show that the defendants' confusion was not officer-induced. The arresting officers did not advise the defendants of their Miranda rights before or during their reading of the implied consent law.

Id. Second, the Court strongly recommended that law enforcement clear up any confusion about right to counsel when raised by the defendant, whether such is officer induced or not:

As discussed above, our implied consent statute does not obligate a police officer to advise an accused that the right to counsel does not apply to the breath test setting. However, we see no harm in placing a minimal burden on officers to briefly explain this to suspects who request counsel when asked to submit to a breath test. Such an explanation would clear up a suspect's confusion and ensure that refusals admitted into evidence at trial are, in fact, knowing and voluntary refusals that show “consciousness of guilt.” We believe that responsible police practice “should lead professional, courteous officers to advise insistent defendants that the right to counsel does not apply to chemical tests. Where a

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driver repeatedly asks to speak with an attorney, it would be courteous and simple for the officer to correct the accused's mistaken assumptions.

Id. Fortunately, the Court clarified its recommendation as follows: “Of course, we cannot impose duties beyond those created by the legislature. The implied consent statute was enacted to assist in the prosecution of drunk drivers. Determining whether informing a suspect that he does not have the right to an attorney for breath testing purposes—as part of the implied consent warning—supports or frustrates the goal of gathering evidence for these cases is a matter for the legislature to decide.” Id. at 1061-62. D. Corpus Delicti State v. Walton, 42 So.3d 902 (Fla. 2d DCA 2010): This case deals with the impact of the Corpus Delicti rule on a DUI Serious Injury case. Initially, this case re-affirms that: (1) the corpus delicti rule does not require the State to establish that the defendant is the guilty party as a predicate for the admission of a confession and (2) the State need only establish “substantial evidence” tending to show the commission of the charged crime (rather than proof of the commission of the crime by a preponderance of the evidence). More particularly, the Court here clarified that identity of the defendant as the driver in a DUI case is not a prerequisite to admission of his statement that he was driving, where the evidence shows that whichever person was driving the vehicle in question was impaired. Specifically, the Court stated: “Because the evidence demonstrated that one of the passengers in the minivan was seriously injured by someone who was driving the Escort while his normal faculties were impaired by alcohol, the State is able to establish the corpus delicti of the offense.” 42 So.3d at 902. (Emphasis added) Bribiesca-Tafolla v. State, 93 So.3d 364 (Fla. 4th DCA 2012): Case involving admission of defendant's statements admitting to driving in DUI Manslaughter sought to be excluded under the Corpus Delicti rule. At 7:10 a.m., defendant and friend driving a truck traveling south on US1 in Jupiter that crossed the lane, struck a car causing serious injury to the two occupants, flipped, ejecting the defendant and his friend while the truck struck another car. Neither cars' occupants saw who was driving the truck and the police could not establish such based on the location the defendant and his friend were found. The defendant's wife told the police that between 2:00 and 2:30 a.m., the defendant received a call at their home in Fort Pierce. The defendant then told his wife he was leaving to pick up a friend and that they were going to play soccer in Jupiter later that day. His wife knew that the friend lived close to their home in Fort Pierce. The defendant then left alone in the truck registered to his wife. The Court indicated that for a confession to be admitted the State has the burden of proving by substantial evidence that a crime was committed and that such proof may be in the form of circumstantial evidence. The Court found that the State had presented substantial evidence that the defendant was driving at the time of the crash based primarily on three factors: (1) The State showed the defendant was driving the truck five hours earlier when he left his home, (2) the course of travel was consistent with what he told his wife, and (3) the truck was registered to his wife. Acoff v. State, 180 So.3d 185 (Fla. 1st DCA 2015): Here, the First District Court of Appeal upheld the trial court’s finding that the State presented sufficient evidence establishing the corpus delicti of the charged offenses, particularly as to the DUI Manslaughter count, so as to

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allow into evidence defendant’s admissions to being the driver and falling asleep at the wheel. Acoff is significant for three reasons:

(1) It reinforces the sometimes forgotten notion that a defendant’s identity as the driver is not necessarily required in order to establish the corpus delicti in DUI-related cases; it is only necessary in those circumstances where the defendant’s identity is critical to showing that a crime occurred. (2) Acoff is the only case of which the undersigned author is aware in which a Florida appellate court found sufficient evidence in a DUI-related case that an impaired driver was behind the wheel at the time of the crash based solely on the erratic nature of the driving. (3) Acoff concluded in the alternative that there was additional circumstantial evidence that was sufficient to identify the defendant as the driver, and in so concluding, the Court included within its discussion of the evidence a statement that the defendant “told the cab driver he had run his car off the road.”

The third point reinforces a rather obscure but potentially important proposition of law regarding the kind of evidence that can be used to establish the corpus delicti, to-wit: “It has been held that extra-judicial statements or admissions made by the defendant to laymen are admissible as part of the corpus delicti, while confessions to law enforcement officials are not.” Fridovich v. State, 489 So.2d 143, 146 (Fla. 4th DCA 1986). Thus, any time a DUI defendant (or any defendant) makes an incriminating statement to a lay witness (as opposed to a law enforcement officer), prosecutors can use Acoff to bolster the argument that the corpus delicti doctrine would not preclude the admissibility of such statement. State v. Fonseca, 264 So.3d 193 (Fla. 4th DCA Jan. 23, 2019): In this case involving DUI, Fleeing or Attempting to Elude and other charges, the trial court granted a motion to suppress based on a corpus delicti theory after the arresting officer failed to identify the defendant at the hearing on the motion to suppress. The trial court based its ruling on the fact that the officer identified the defendant’s sister, not the defendant, as the driver of the car. The State moved for rehearing and argued it was not required to establish the defendant’s identification during a motion to suppress hearing, particularly because identity was not the issue raised in the motion. The trial court rejected this argument, finding that the corpus delicti rule “encapsulated” the officer’s failure to identify the defendant as the driver. On appeal, the Fourth District Court of Appeal reversed. The Court explained:

In the context of a DUI conviction, our supreme court defined corpus delicti as “ ‘the fact that a crime has actually been committed, that someone is criminally responsible.’ ” Burks v. State, 613 So.2d 441, 443 (Fla. 1993) (quoting Ballentine's Law Dictionary 276 (3d ed. 1969) ). It further explained that “the identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession.” Id.

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Significantly, the trial court based its ruling on Burks. But, Burks involved the appeal of a conviction, not a ruling on a motion to suppress. And, language in Burks actually conflicts with the trial court’s ruling. In short, the case argued by the defendant, and relied upon by the trial court, is inapposite. Burks, 613 So.2d at 443; see also Franqui v. State, 699 So.2d 1312, 1317 (Fla. 1997) (proof of corpus delicti is required before a confession can be admitted, but the State is not required to identify the defendant to establish corpus delicti ).

264 So.3d at 195. E. Accident Report Privilege Wetherington v. State, 135 So.2d 584 (Fla. 1st DCA 2014): State conceded on appeal and First District agreed, that defendant’s statement to police sergeant in DUI case that he was driving the vehicle at the time of the accident was inadmissible under the accident report privilege. Also, Court disagreed with State and held that trial court’s error was not harmless. Williams v. State, 208 So.3d 196 (Fla. 3d DCA 2016): Here, the Third DCA, based on the rulings in State v. Ferguson, 405 So.2d 294 (Fla. 4th DCA 1981) and Cummings v. State, 780 So.2d 149 (Fla. 2d DCA 2001) (discussed in the DUI Law Manual at page 151), holds that the accident privilege does not apply when a person abandons his or her duty to remain at the scene of any automobile accident and who chooses instead to leave the scene of an accident. This ruling eliminates any doubts about the issue that the Third DCA left open in Sylvester v. State, 557 So.2d 180 (3d 1990). (Sylvester was also discussed in the DUI Law Manual at page 151.). CHAPTER IV: Field Sobriety Tests A. The Requisite Legal Standards for Detaining a Suspect in Order to Conduct a DUI Investigation or to Administer (Require) Field Sobriety Tests

1. Reasonable Suspicion to Conduct Further Investigation State v. Jimoh, 67 So.3d 240 (Fla. 2d DCA 2010), cert. denied, 64 So.3d 117 (Fla. 2011): Here, a deputy observed the defendant sitting in the driver’s seat of a car with the engine running in the parking lot of a convenience store, appearing to be asleep or looking down at her telephone. The deputy determined she had been there for approximately ten to fifteen minutes. He then called for back-up and another deputy, an experienced DUI investigator, responded. The second deputy observed the defendant slumped over the wheel, with the engine running and headlights on. The driver’s side window was open about four inches and the deputy could smell alcohol coming from the vehicle. Both deputies attempted to wake the defendant by banging on the roof and doors. When she did not respond, the second deputy reached into the car, shut off the engine, opened the door, and shook the defendant until she woke up. He noticed bloodshot, glassy eyes and conducted a DUI investigation. Under these facts, the Court found the DUI investigation his to be proper, holding that the deputy had reasonable suspicion that the defendant was impaired before opening the door to the vehicle and waking the defendant (which the Court indicated was when the seizure occurred). The Court distinguished its own prior

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Opinion in Danielewicz v. State, 730 So.2d 363 (Fla. 2d DCA 1999) because although the facts were similar (each case involved a defendant who was apparently sleeping in a parked vehicle with the engine running and headlights on), here the officers smelled alcohol coming from the partially open window, whereas the window was closed in Danielewicz; thus there was no smell of alcohol before the officer in Danielewicz were able to persuade the defendant to open the locked door and get out of the vehicle. (Note, however, that the defendant in Danielewicz was parked outside a “restaurant/bar” at 1:30 a.m. and only the bar was open for business – and the Opinion in Jimoh does not indicate what time of day or night the incident occurred in Jimoh. In this regard, see this author’s criticism of the Danielewicz case in this author’s DUI Law Manual at page 66.) As to the defendant’s argument that the circumstances could not have provided reasonable suspicion because the deputy’s observations were also consistent with innocent conduct, the Court rejected this contention. The Court properly pointed out that the United States Supreme Court had stated in United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) that “[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Ironically, the Court in Jimoh itself had earlier referred to the following seemingly inconsistent passage from its prior Opinion in Danielewicz: “The actions of Danielewicz were susceptible of being interpreted as innocent conduct; therefore, [the officer] needed additional factors before he could validly stop her.”

State v. Castaneda, 79 So.3d 41 (Fla. 4th DCA 2011): In this case, the Fourth District agreed with the Second District Court’s interpretation in State v. Ameqrane, 39 So.3d 339 (Fla. 2d DCA 2010) of the Fourth District’s previous ruling in Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005). In other words, the Court here clarified that speeding, odor of alcohol on breath, and bloodshot watery eyes were sufficient for reasonable suspicion to detain a defendant for a DUI investigation, despite the other factors also mentioned in Origi.

Santiago v. State, 133 So.3d 1159 (Fla. 4th DCA 2014): This case involved a defendant who was charged with violating his probation in a number of ways. One of the bases for his violation was an incident in which he was arrested for possession of cocaine and possession of paraphernalia. Specifically, police received an anonymous phone call about a car parked at the end of a dead end street at 2:00 a.m. with its headlights periodically flashing on and off. When officers arrived at the location, they found defendant and a female passenger inside the vehicle. The keys were in the ignition so music could play, but the engine was not running. One officer detected the odor of alcohol on Defendant's breath. Defendant stated he had consumed a couple beers, but he was not driving. When asked about his presence at that location, he gave the officers a vague explanation. Defendant was ordered to step out of the car, and when he did, a small plastic bag containing cocaine dropped from his lap onto the ground. The officers then searched the car and located a short plastic straw that they deemed to be drug paraphernalia.

Defense counsel filed a motion to suppress both the cocaine and paraphernalia, claiming these items were obtained during the course of an unlawful detention. The defense argued, among other things, that there was no legal justification for an investigatory stop because the officer merely smelled alcohol on defendant’s breath with no indicia of intoxication. Counsel also argued this was not a consensual encounter because Defendant could not have objectively believed he was free to leave since the officers positioned themselves on both sides of the

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vehicle. The State responded that the officers were engaged in a consensual encounter with Defendant, and could reasonably detain him for further investigation because he was observed in the driver's seat, smelling of alcohol, with keys in the car’s ignition. The trial court denied the motion to suppress, finding that the interaction was consensual and that the officers had a reasonable basis to temporarily detain Defendant by ordering him out of the car for further investigation and officer safety based on the lateness of the hour, the suspiciousness of Defendant’s explanation for being there, and the odor of alcohol.

On appeal, the Fourth District Court of Appeal reversed as to the motion to suppress issue. The Court concluded that the facts were insufficient to form a particularized and objective basis for reasonable suspicion of criminal activity and that the officer had no legal basis to order the Defendant out of the car for “officer safety purposes.” As to the State’s argument that that the officer could lawfully order defendant out of the car for suspicion of DUI, the Court pointed out that the officer testified that odor of alcohol, coupled with driver's admission that he had consumed a couple of beers, did not lead him to conclude that driver might be under influence of alcohol and that the officer testified that defendant would have been free to leave even after he got out of the car if he had merely produced a valid driver’s license. Just after explaining the above, the Court stated:

This court and others have required more than the odor of alcohol to establish reasonable suspicion for an investigatory stop. See, e.g., State v. Castaneda, 79 So.3d 41 (Fla. 4th DCA 2011) (reasonable suspicion present where defendant was speeding, smelled of alcohol, and had bloodshot and watery eyes); State v. Ameqrane, 39 So.3d 339 (Fla. 2d DCA 2010) (reasonable suspicion existed where the defendant was speeding at four o'clock in the morning, had bloodshot, glassy eyes, and smelled of alcohol); Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005) (reasonable suspicion present where defendant was speeding, smelled of alcohol, and had bloodshot eyes); State v. Jimoh, 67 So.3d 240, 241 (Fla. 2d DCA 2010) (reasonable suspicion where defendant observed sitting in the driver's seat of her parked car with the engine running and the headlights on, “slumped over” steering wheel, driver's side window was open and the deputies detected a strong odor of alcohol coming from the car); State v. Taylor, 648 So.2d 701, 703 (Fla.1995) (factors creating reasonable suspicion of impairment include traffic violations, slurred speech, watery, bloodshot eyes, and a strong odor of alcohol).

From the testimony presented, even after speaking to Defendant, and despite smelling the alcohol on his breath, Defendant was always free to leave. If the officer had reasonable suspicion to believe Defendant was under the influence, or otherwise engaged in other criminal activity, he would not have been free to walk or drive away without further investigation.

133 So.3d at 1166. (Emphasis added). The above passage will certainly make it more difficult for prosecutors to successfully argue, as many federal courts have held, that smell of alcoholic beverages alone or a mere admission of drinking alcoholic beverages provides reasonable suspicion to conduct a DUI investigation (as noted in the DUI Law Manual at pages 162-63). But it should not prevent the State from arguing

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that the smell of alcohol and some other factor is sufficient to justify an investigative detention for DUI. As previously noted in the DUI Law Manual, the fact that the previous appellate cases involved three or more factors does not imply that three or more factors are always required: “Prosecutors should remember that even though the evidence of impairment in Origi and Ameqrane was sufficient based on the three factors just mentioned therein, this does not mean that such factors are necessary to conduct a DUI investigation; i.e., these factors do not represent the bare minimum for what it takes to conduct a DUI investigation.” Page 162 of Manual. Additionally, even the argument that smell of alcohol alone can provide reasonable suspicion of DUI still has not been entirely foreclosed. That is, an argument can still be made that the statement by the Court that “[t]his court and others have required more than the odor of alcohol to establish reasonable suspicion for an investigatory stop” is mere dicta. (Note that the Court is mistaken in saying that the prior cases “required” more than the odor of alcohol – the prior cases all contained other factors in addition to the odor of alcohol but were never faced with a situation involving only the odor of alcohol.) This is because the Court clearly concluded that the officer himself considered the defendant “always free to leave” and did not himself even believe that there was reasonable suspicion to detain defendant for DUI. Thus it can be argued (but don’t count on winning, at least not at the trial level) that because of the uncertain officer testimony in this case and because of the overlapping grounds set forth to support the investigative detention in this VOP case, it did not give rise to a clean discussion in the opinion of the bare minimum needed to conduct a DUI investigation. C. Refusal to Participate in Field Sobriety Tests Howitt v. State, 266 So.3d 219 (Fla. 5th DCA February 8, 2019): Defendant’s refusal to submit to field sobriety tests was inadmissible to establish consciousness of guilt in prosecution for DUI, where officers did not inform him of any adverse consequences of refusing to perform a field sobriety test. F. Field Sobriety Tests and the “Scientific Reliability” Issue (including the HGN and DRE Issues) Harmon-Horton v. State, 91 So.3d 931 (Fla. 1st DCA 2012): Court found error in officer’s testimony that HGN was performed without establishing scientific predicate and prosecutor's overstating of officer’s testimony but confirmed conviction based on standard of review. G. Field Sobriety Tests and Interactions on Videotapes (new topic) State v. Holland, 76 So.3d 1032 (Fla. 4th DCA 2011): Here, the defendant was stopped by a deputy on suspicion of DUI. After the initial stop, a second deputy was called to the scene to administer field sobriety exercises. The interaction between the second deputy and the defendant was recorded by video camera. In particular, the videotape showed defendant’s refusal to submit to breath testing, the field sobriety exercises administered by the second deputy, and the conversations between that deputy and defendant during the course of the investigation. Before trial, the State announced that it did not intend to call the second deputy as a witness, prompting defendant to move to suppress all of the second deputy’s involvement in the investigation. This

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included the entire contents of the videotape. Defendant argued that the State's decision not to call the second deputy would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution, citing to Crawford v. Washington, 541 U.S. 36 (2004). The Court held that the refusal to submit to the breath test was admissible pursuant to the plain language of section 316.1932(1)(a)1.a. The Court also held that the statements made by the defendant on video were admissible as admissions of a party opponent under section 90.803(18)(a). As to statements made by the second deputy on video, the Court found that the deputy’s directives on the videotape during the sobriety exercises, both verbal and non-verbal, were not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to defendant’s otherwise ambiguous acts. Having concluded that the statements on the videotape are not hearsay, the Court held that the constitutional concerns raised in Crawford regarding testimonial statements were not implicated. The Court then remanded the case back to the trial court to determine whether the stopping officer’s testimony was sufficient to authenticate the videotape.

CHAPTER V: Custody and Arrest Issues A. Validity of DUI Arrest

1. Probable Cause

Malone v. State, 195 So.3d 1184 (Fla. 2d DCA 2016): In reviewing county court’s order granting defendant’s motion to suppress in prosecution for driving while under influence, circuit court improperly reweighed arresting officer’s testimony, where, despite acknowledging that county court rejected at least part of officer’s testimony, circuit court concluded that officer’s testimony regarding defendant’s demeanor and field sobriety test results established probable cause notwithstanding what was readily observable on dash camera video and audio recording of encounter. CHAPTER VI: Scientific Evidence B. Breath Tests

1. Implied Consent Law . . . allegedly improper warnings

Nader v. Florida Dept. of Highway Safety and Motor Vehicles, 87 So.3d 712 (Fla. 2012): Although this case arose out of a DUI administrative driver’s license suspension hearing, it is also relevant to the propriety of implied consent warnings in criminal DUI cases. Accordingly, it is discussed in the instant topic of allegedly improper warnings under the Implied Consent Law. Here, the Florida Supreme Court settled a conflict in the DCA’s on the issue of the language used in an implied consent warning. The case also came to the Court based on the following certified question:

DOES A LAW ENFORCEMENT OFFICER’S REQUEST THAT A DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH

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THE BREATH–ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER'S LICENSE FOR REFUSING TO TAKE ANY TEST?

The conflict arose as follows: In State Department of Highway Safety and Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007), the Fourth District had held that when an officer, reading off a standard form, warned the driver that her driving privileges would be suspended if she refused to submit to a breath, blood, or urine test, this wording “may have misled Clark into thinking that she would have to submit to a more invasive test, the withdrawal of blood, than was authorized by the statute.” 974 So.2d at 418. The Second District in Department of Highway Safety and Motor Vehicles v. Nader, 4 So.3d 705 (Fla. 2d DCA 2009), disagreed with Clark and held that where the warning is given under circumstances where the breath test is the only required test, and where the only test specifically offered is the breath test, then there is no basis for finding that a driver may be confused over which test is at issue. On conflict review and certified question review, the Florida Supreme Court agreed with the Second District’s decision in Nader, disagreed with the Fourth District’s decision in Clark, and answered the certified question in the negative. Specifically, the Court stated:

We agree with the Second District that the “use of ‘or’ plainly suggests the driver has a choice of one of the three tests and is free to choose the breath test if the driver prefers the least invasive method.” Nader, 4 So.3d at 709. In reaching this conclusion, the Second District cited to Sparkman v. McClure, 498 So.2d 892, 895 (Fla.1986), in which we recognized that the “word ‘or’ is generally construed in the disjunctive when used in a statute or rule. The use of this particular disjunctive word in a statute or rule normally indicates that alternatives were intended.” Sparkman, 498 So.2d at 895 (citation omitted). In this case, as pointed out by the circuit court, the only test that the driver was specifically offered was the breath test and that is the only test that she refused. Further, as found by the circuit court, based on the record, “[t]here is no indication that Nader felt that she was also obligated to take either or both of the other two tests.”

87 So.3d at 721.

2. Implied Consent Law; administrative driver’s license suspension hearings

DHSMV v. Berne, 49 So.3d 779 (Fla. 5th DCA 2010), cert. dismissed, 84 S.3d 257 (Fla. 2012): Here, in a case arising out of an administrative driver’s license suspension hearing, the Fifth District Court of Appeal held that the Intoxilyzer 8000 is an approved instrument; that an "approval study" with the 8000.26 software was not required by FDLE rules; and that instead, only an "evaluation" of said software was necessary (and was properly done). A more complete discussion of this case is contained later in this Update at page 72 in the context of the topic “The post-Muldowney search for the ‘source code’ and other ‘full information.’ ”

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DHSMV v. Cherry, 91 So.3d 849 (Fla. 5th DCA 2011): Another important case from the Fifth District Court of Appeal arising out of an administrative driver’s license suspension hearing. Here, the Fifth District held that because neither of motorist’s breath samples met the minimum requirements for volume, neither sample was reliable, and neither was valid, and as such, motorist refused to submit to a breath test, such that her right to seek an independent blood test did not arise. Court therefore quashed the circuit court’s order which had invalidated the one year suspension for refusing the breath test. This case is more thoroughly considered in this Update under the topic of “Low sample volume/volume not met: ‘valid’ breath test vs. refusal” at pages 73-75 and again under the topic of Independent Blood Tests, at page 122. Nader v. Florida Dept. of Highway Safety and Motor Vehicles, 87 So.3d 712 (Fla. 2012): This case, concerning the propriety of the language used in an implied consent warning, was just discussed in detail in this Update at pages 60-61 in the context of the topic of allegedly improper implied consent warnings. It is mentioned here only because the case arose out of an administrative driver’s license suspension hearing. The reader should refer back to the previous pages for that discussion. DHSMV v. Hernandez, 74 So.3d 1070 (Fla. 2011): This case settled a conflict in the DCA’s over the effect of an amendment to paragraph (7) of section 322.2615, which is the statute regulating DUI administrative suspension hearings. In 2006, the Legislature amended section 322.2615(7) so as to remove any reference to the requirement that the person was placed under lawful arrest. However, the District Courts of Appeal disagreed over whether this amendment actually did change the normal requirement of a lawful arrest in DUI administrative suspension hearings. Compare, Department of Highway Safety and Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA 2008) & Hernandez v. DHSMV, 995 So.2d 1077 (Fla. 1st DCA 2008) (holding that requirement of lawful arrest still applies when other statutory provisions considered in para materia with the amended provision) with McLaughlin v. DHSMV, 2 So.3d 988 (Fla. 2d DCA 2008) (holding that plain language of section 322.2615 limits the hearing officer’s scope of review so as not to require a lawful arrest). The McLaughlin and Hernandez cases came to the Florida Supreme Court based on conflict review and on two certified questions. The Court rephrased the questions as follows:

Can the DHSMV suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?

Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

DHSMV v. Hernandez, 74 So.3d at 1073. Ultimately, by a 4-3 vote, the Florida Supreme Court in Hernandez approved the result of the First District’s decision in Hernandez, quashed the Second District’s decision in McLaughlin, answered the first rephrased certified question in the negative, answered the second rephrased certified question in the affirmative, and held that a

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driver must be able to challenge whether the refusal was incident to a lawful arrest. Id., at 1073-1074. However, the four justices in the majority could not reach a consensus on their reasoning.

The three justices in the plurality opinion agreed with the First and Fifth Districts that when section 322.2615 is read in para materia with section 316.1932 (which still does require a lawful arrest), along with paragraphs (1)(a) and (1)(b) of section 322.2615 which require a “lawful test,” then there still is a requirement in administrative license suspension hearings to have a lawful arrest. Id., at 1074-78. Further, due process requires such an interpretation because to read the amended statute without reference to the other provisions would allow the DHSMV to suspend a driver’s license without reasonable notice to the driver, and the driver would have no possibility of a meaningful process to review the lawfulness of the suspension. Id., at 1078-79.

The “concurring in result only” opinion of Justice Quince stated that “[i]t is unmistakably clear to me that a person's privilege to drive on the highways of this State can only be taken away if he refuses a test of his blood alcohol level and that refusal is incident to a lawful arrest.” Id., at 1080. However, Justice Quince disagreed with the plurality opinion’s “statutory construction that the hearing officer is statutorily authorized to determine the lawfulness of the arrest.” Id. Nevertheless, Justice Quince agreed with the plurality opinion’s result because she opined that “there must be a mechanism by which a driver can challenge the lawfulness of the arrest. Without such a method, the statutory scheme would be unconstitutional.” Id. As will be shown next, the lack of consensus in reasoning in Hernandez as to a hearing officer’s authority to determine the legality of the arrest has caused difficulties in the Second District Court of Appeal (where, prior to the Hernandez ruling, arrests could not be challenged at all in administrative suspension proceedings).

Arenas v. Florida Dept. of Highway Safety and Motor Vehicles, 90 So.3d 828 (Fla. 2d DCA 2012): Based on Hernandez, supra, the Court sent the case back to the circuit court to either remand the case back to DHSMV so that the hearing officer can determine the lawfulness of the arrest and the consequences thereof or allow the driver to file a declaratory action under chapter 86, Florida Statutes for the same purpose. The Court explained this unusual procedure in a footnote:

We suggest these alternative methods because, as a result of Justice Quince's concurring-in-result-only opinion, there is not a clear majority for the view that the statutory framework gives a hearing officer in the DHSVM’s Bureau of Administrative Reviews the necessary jurisdiction to review the lawfulness of Mr. Arenas' arrest.

90 So.3d at 834, n.6. Lawrence v. Department of Highway Safety & Motor Vehicles, 93 So.3d 350 (Fla. 2d DCA 2012): Driver challenged the suspension of her driver's license for refusing to submit to a breath test after a traffic stop and arrest for driving under the influence. In her criminal DUI case, driver pled guilty to a reduced charge of reckless driving; she did not contest the lawfulness of the stop in the criminal proceeding. Second District granted certiorari and remanded to the circuit court to “determine the mechanism by which the lawfulness of the arrest may be decided,” including

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those suggested in Arenas and whether her criminal proceeding may have provided such an opportunity. Roark v. Department of Highway Safety & Motor Vehicles, 107 So.3d 1131 (Fla. 2d DCA 2012) and Pankau v. Department of Highway Safety & Motor Vehicles, 91 So.3d 923 (Fla. 2d DCA 2012): Same situation as in Lawrence, supra, except here in each case the driver submitted to a breath test (with a result over .08) rather than refusing it. The Second District remanded in each case for the circuit court to decide whether a criminal proceeding in which the driver pled guilty to reckless driving, after a breath test over the legal limit, was a sufficient opportunity to challenge the legality of stop. Rudolph v. Department of Highway Safety & Motor Vehicles, 107 So.3d 1129 (Fla. 2d DCA 2012), and Carrizosa v. Department of Highway Safety & Motor Vehicles, 124 So.3d 1017 (Fla. 2d DCA 2013): In each of these cases, as in Roark and Pankau, supra, a driver challenged the suspension of their driver’s license for failing a breath test after an allegedly illegal stop and the administrative hearing officer refused to consider the lawfulness of the stop. However, in each case, the State nolle prossed the DUI charge before the driver could challenge the stop in criminal court. The Second District found in both cases that the circuit court denied the drivers procedural due process by failing to afford them an opportunity to challenge the lawfulness of the stop. The Court pointed to the Florida Supreme Court’s warning in Hernandez that denial of the opportunity to challenge the lawfulness of the stop could subject the driver to a miscarriage of justice or unconstitutional treatment. The Court in both cases therefore granted the certiorari petition and remanded for the circuit court to determine the mechanism by which the lawfulness of the stop may be decided. Gonzalez v. DHSMV, 91 So.3d 924 (Fla. 2d DCA 2012): Here again, a driver challenged the suspension of his license for failing a breath test after an allegedly illegal stop and the administrative hearing officer refused to consider the lawfulness of the stop. However, unlike the cases just discussed, the record did not reflect whether the driver was ever charged with the criminal offense of DUI. Under such circumstances, the Court stated:

Although Mr. Gonzalez has never had an opportunity to challenge the lawfulness of his stop in this civil administrative proceeding, he may have had such an opportunity in a criminal proceeding. Thus, in addition to the mechanisms suggested in Arenas, the circuit court is permitted to consider whether a criminal proceeding provided an adequate mechanism to challenge the lawfulness of the stop. If a lower tribunal determines that the stop was unlawful, it is still permitted to decide whether the breath test evidence is admissible. We express no opinion on these issues.

91 So.3d at 925. Dodson v. DHSMV, 111 So. 3d 266 (Fla. 1st DCA 2013): Following Hernandez, supra, Court reversed suspension for DUBAL where hearing officer failed to consider lawfulness of stop. DHSMV v. Bennett, 125 So.3d 367 (Fla. 3d DCA 2013): This case deals with the issue of whether DHSMV may authorize a police officer to appear telephonically at the formal review

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hearing even when the driver attempts to have a subpoena issued to require the officer’s physical presence at the hearing. The Third District found that based on the relevant statutes and administrative codes, hearing officers have broad authority to conduct administrative hearings and issue subpoenas as they see fit, and therefore the circuit court’s order invalidating the license suspension in this case was in error. As to the degree of error necessary to grant a second tier certiorari petition, the Court found that the First District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904 (Fla. 1st DCA 2011) had made it clear that the live appearance of a witness in an administrative proceeding regarding a license suspension is not required. The Third District acknowledged that the First District in Edenfield had denied certiorari review in that case because there was no prior case law that established a clear principle of law regarding the issue. However, as the Third District noted, the First District had stated that the circuit court in that case “misread our [prior] decision ... to require the live appearance of a witness in an administrative proceeding regarding a license suspension when a party requests [a] live appearance.” 125 So.3d at 369, quoting Edenfield at 58 So.3d at 907. Thus, the Third District determined that the First District’s Edenfield decision became a clearly established principle of law, which the circuit court in this case violated. The Third District concluded: “To be clear, a party does not have a right to require an officer’s live appearance at an administrative hearing dealing with a license suspension. In such cases, the hearing officer may determine whether a telephonic appearance is adequate.” 125 So.3d at 369-70. DHSMV v. Edgell-Gallowhur, 114 So.3d 1081 (Fla. 3d DCA 2013): Third District ruled that the administrative hearing officer could properly consider and rely upon a speeding ticket to establish reasonable suspicion for the initial stop notwithstanding the driver’s arguments that the speeding ticket was not sworn to and that the officer’s arrest affidavit did not refer to the speeding ticket. The Court noted that the relevant statute and administrative rules provide that the only documents required to be in the affidavit form are the officer’s statement of grounds for belief that the person was driving under the influence of alcoholic beverages or chemical or controlled substances, and, if applicable, the statement that the person refused to submit to a breath, blood, or urine test. The Court also found the contrary ruling of the circuit court below to be sufficiently egregious or fundamental to fall within the limited scope of the Court’s certiorari jurisdiction. The Court noted that the circuit court had issued a written opinion which had been published and was widely available both online and in hard copy. As such, the circuit court’s error established an incorrect legal principle that was binding precedent on all county court judges within the Eleventh Judicial Circuit of Florida, and was capable of repetition in future formal hearings, thereby continuing to deprive the Department of its ability to sustain a driver’s license suspension based upon evidence which is properly admitted under the existing statutes and administrative regulations. Klinker v. DHSMV, 118 So.3d 835 (Fla. 5th DCA 2013): Fifth District denied driver’s second tier petition for certiorari which sought to quash a circuit court order affirming hearing officer’s determination that the driver’s license suspension should be sustained. Court denied all

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challenges to hearing officer’s determination, specifically: (1) hearing officer’s finding that there was probable cause for the traffic stop, (2) hearing officer’s refusal to issue subpoenas to FDLE employees Roger Skipper, Jennifer Keegan, and Laura Barfield, (3) driver’s claim that the Intoxilyzer 8000 was never properly approved for evidentiary use in Florida, and (4) driver’s claim that the record did not contain the most recent FDLE Department Inspection Report (Form 41) for the instrument used to test him. Court chose to more specifically address the last three claims in order to resolve a conflict in circuit court rulings on these claims. The Court explained that the key question as to claims (2) and (4) was whether an FDLE Inspection Report would qualify as a document that law enforcement must submit to the DHSMV pursuant to section 322.2615(2). The Court determined that the Inspection Report did not so qualify because “language in subsection (2) clearly refers to documentation, such as the breath alcohol test affidavit, which is designed to provide the ‘results’ of a driver’s breath alcohol level as determined on the date that the driver actually took the breath alcohol test.” 118 So.3d at 840. On the other hand, the Inspection Report “is more akin to a report related to the maintenance of a breath testing instrument, as opposed to the results of a breath testing instrument.” Id. (Emphasis by the Court). Accordingly, the Court ruled that the hearing officer was not required to admit the Inspection Report at the hearing. Further, the Court stated that given this conclusion regarding the Inspection Report, “it follows that a driver has no right to request that a subpoena be issued for any individuals identified in such a report. See § 322.2615(6)(b), Fla. Stat. (2010). Thus, in the context of the instant case, we find that the hearing officer correctly refused to issue a subpoena for FDLE employee, Roger Skipper.” Id., at 841. The Court added: “Likewise, we find that the hearing officer correctly rejected the subpoena requests for Laura Barfield, and Jennifer Keegan. There is simply no reason to believe that either of these two individuals appeared on any of the documents submitted by law enforcement to the DHSMV pursuant to section 322.2615(2).” Id., at 841, n. 6. As to the claim that that the Intoxilyzer 8000 was never properly approved for evidentiary use in Florida, the Court held that “such challenges to the approval process of the Intoxilyzer machine are simply beyond the scope of a formal driver’s license review proceeding,” id., and that “any challenges directed at deficiencies in this approval process are better addressed in a civil or criminal action.” Id., at 841. DHSMV v. Robinson, 93 So.3d 1090 (Fla. 2d DCA 2012); DHSMV v. Saxlehner, 96 So.3d 1002 (Fla. 3d DCA 2012); and DHSMV v. Corcoran, 133 So.3d 616 (Fla. 5th DCA 2014): These three cases all involve the issue of the consequences of a law enforcement officer’s failure to appear at a formal DUI administrative license suspension review hearing. These cases together temporarily stood for the proposition that there is no legal basis to invalidate a driver’s license suspension based on a police officer’s failure to appear at the formal review hearing; instead the driver must seek enforcement of the subpoena pursuant to section 322.2615(6)(c). However, the facts of these cases all occurred prior to the 2013 amendment to subsection (11) of section 322.2615 (which now states, in pertinent part: “If the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension”), the precedential value of these cases is limited. In fact, as a result of the amendment, these cases have all been effectively overruled.

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DHSMV v. Wiggen, 152 So.3d 773 (Fla. 5th DCA 2014): Substantial evidence supported hearing officer's finding that driver was impaired, based on result of breath-alcohol test, warranting suspension of driver’s license, although there was evidence that testing device failed its monthly inspection only four days after being used to test driver's breath-alcohol level, where there was also evidence that device passed its previous monthly inspection and that self-diagnostic tests performed before and after driver's test indicated the device was functioning properly. This case is discussed more thoroughly in the next section regarding FDLE rules and the predicate for admissibility of breath tests. DHSMV v. Baird, 175 So.3d 363 (Fla. 3d DCA 2015): Here, the video of the discussion between the officer and the driver showed the following exchange:

OFFICER: I am now requesting that you submit to a breath test. RESPONDENT: Is that an option? OFFICER: Yes, it is optional, but there are consequences.

The video showed that the officer then read the driver the standard implied consent warnings. The hearing officer sustained the license suspension but the circuit court reversed, finding that the officer’s use of the term “optional” created a “safe harbor” of refusal for the driver notwithstanding the subsequent implied consent warnings. On second tier certiorari review, the Third District Court of Appeal reversed again. The Court held that the circuit court applied the wrong law and improperly reweighed the evidence in reversing DHSMV’s order. Specifically, the Court explained that controlling case law precludes the circuit court from scouring the record for evidence which contradicted the hearing officer’s conclusion. Rather, a circuit court is only permitted to determine whether an agency’s decision was supported by competent substantial evidence. Here, the time lapse between the statement “it is optional” and the reading of the actual consequences was less than 10 seconds and there was nothing offered to support the argument that such a de minimus time lag had any impact on the driver’s state of mind. DHSMV v. Canalejo, 179 So.3d 360 (Fla. 3d DCA 2015): Third District held that as a result of DHSMV v. Bennett, 125 So.3d 367 (Fla. 3d DCA 2013) (discussed above at pages 56-57), it is now a clearly established principle rule of law, sufficient to justify a second tier reversal, that a party does not have a right to require an officer’s live appearance rather than a telephonic appearance at an administrative driver’s license suspension hearing – even when the driver requests the live appearance in order to admit a videotape of the mandatory 20-minute waiting period that occurred after the driver’s arrest. The Court stated that the Department of Highway Safety and Motor Vehicles was correct that it had no burden to authenticate the videotape and that the absence of any witness to do so was the fault of the driver. Likewise, the Department was correct that section 322.2615(2) provides the means by which the videotape could have been authenticated by the driver in the absence of the live appearance of any officer at the hearing. Finding that the driver’s failure to follow the procedures set forth therein is not the fault of the Department, the Court granted the Department’s petition for writ of certiorari and ordered that the driver’s license suspension be reinstated. Objio v. DHSMV, 179 So.3d 494 (Fla. 5th DCA 2015): This is the first Florida appellate case to address the effect of the 2013 amendment to subsection (11) of section 322.2615, which (as just stated above) now states, in pertinent part: “If the arresting officer or the breath technician fails

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to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.” Here, under a rather unusual set of facts, the Fifth District Court of Appeal strictly construed the statute to conclude that the license suspension should have been invalidated when the arresting officer failed to appear, even though the officer had filed a timely written request to continue the hearing due to the fact that he was going to be on leave on the date of the hearing. More specifically, when the arresting officer did not appear at the scheduled hearing, the driver’s attorney moved for invalidation of the suspension pursuant to the newly amended statutory provision. It is not clear from the opinion why the DHSMV hearing officer did not grant the arresting officer’s request to continue the hearing. Instead the hearing proceeded without the arresting officer and the driver’s attorney questioned the other two officers who had appeared at the hearing. The opinion then states the following:

Although the hearing officer stated that he would be willing to continue the case and would extend the duration of Objio’s temporary driving permit, Objio’s counsel declined. Objio reiterated his position that section 322.2615(11) was absolute in its terms and required the hearing officer to invalidate the suspension. At this point, the hearing officer asked whether Objio would object to a continuance; when Objio’s counsel did not provide an immediate answer, the hearing officer said he would check back with him later. The hearing officer wanted time to consider this issue because section 322.2615(11) was recently revised, so he informed Objio’s counsel that they would reconvene by recorded telephone call to complete the argument and ruling on this specific issue. Several days later, as agreed, the hearing officer contacted Objio’s counsel by telephone and was informed that Objio was not going to request a continuance because section 322.2615(9) provides that a temporary driving “permit may not be issued to a person who sought and obtained a continuance of the hearing.” The hearing officer entered a written order that denied Objio’s request for invalidation of the suspension under section 322.2615(11); and sustained the license suspension

179 So.3d at 495-496. It is not clear why the hearing officer did not simply grant a continuance over the driver’s objection instead of outright sustaining the license suspension at that time. In any event, the driver then filed a petition for certiorari review. The circuit court denied the petition, agreeing with the Department that the arresting officer did not “fail to appear” at the hearing since he had sought a continuance, rather than simply not showing up. The circuit court reasoned that the arresting officer’s absence did not trigger the mandatory invalidation provision of section 322.2615(11) and found that the driver could not avoid the consequences of license suspension by refusing to accept the hearing officer’s initial offer of a continuance. However on second tier certiorari review, the Fifth District held that the circuit court did not apply the correct law in reaching its decision and ordered that the driver’s license suspension be invalidated. The Court focused on the fact that no continuance was ever ordered and provided a

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rather literal, if not actually expansive, interpretation of the term “fails to appear.” Specifically, the Court stated:

. . . When it comes to a formal review hearing, section 322.2615 treats the non-attendance of subpoenaed arresting officers differently than the non-attendance of other subpoenaed witnesses. Section 322.2615(6)(c) provides that “failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate suspension.” (emphasis added). Even a driver’s failure to appear at his own hearing will be excused unless “the hearing officer finds such failure to be without just cause.” Id. § 322.2615(6)(b). However, in a situation such as this, where no continuance is ordered, section 322.2615(11) is absolute, mandatory, and quite clear when it states that “[i]f the arresting officer ... fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.” Id. (emphasis added). Because there is no ambiguity in the wording of subsection (11), there is no need to resort to any other source for explanation or definition, such as Florida Administrative Code Rule 15A–6.015, which was discussed above. Thus, when the arresting officer, Fowler, failed to appear at the hearing after being duly subpoenaed, the hearing officer was required, under section 322.2615(11), to invalidate the suspension of Objio’s driver's license.

Id. at 496-497. (Emphasis added). 3. Consequences of breath test refusal Howitt v. State, 266 So.3d 219 (Fla. 5th DCA February 8, 2019): Defendant's refusal to submit to a breath test was inadmissible to establish consciousness of guilt in prosecution for driving DUI, where officers did not read defendant any portion of the implied consent law or otherwise inform him of the consequences of refusing to take a breath test 5. FDLE rules; predicate for admissibility of breath tests Department of Highway Safety and Motor Vehicles v. Wiggen, 152 So.3d 773 (Fla. 5th DCA 2014): In this administrative license suspension case, there was evidence that the breath test instrument failed its monthly inspection only four days after being used to test Wiggen’s breath-alcohol level. However, the agency inspector in this case testified that the instrument did not actually fail that inspection; rather, the inspection falsely indicated a failure as a result of the agency inspector’s lack of experience and consequent error during the inspection. He provided a detailed technical explanation of the reasons for the false failure result. Additionally, the breath test affidavit in this case showed that the self-diagnostic checks performed before and after Wiggen’s test indicated that the instrument was functioning properly. A defense expert testified that in his expert opinion, because the Device passed the October 30, 2011 inspection but failed the November 30, 2011 inspection, all of the testing results between November 1 and 30, 2011, were invalid. The breath test in this case occurred on November 26, 2011. The hearing officer concluded that there was sufficient evidence to sustain the driver's license suspension. However, on review, the circuit court ruled that after Wiggen produced evidence that the instrument failed its agency inspection four days after Wiggen’s test, the burden shifted to

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DHSMV “to show that the test on the day in question, run just a few days before the [instrument] became inoperative, produced accurate and reliable results.” The circuit court opined that DHSMV “presented no such testimony or evidence.” On further review, the Fifth District Court of Appeal reversed the circuit’s ruling and reinstated the license suspension. The Court explained:

Here, DHSMV established the Donaldson requirements, rendering the breath-alcohol test affidavit admissible. Once the affidavit was admitted, the burden shifted from DHSMV to the party challenging the suspension, in this case Wiggen, to overcome the presumption of impairment. Berne, 49 So.3d at 783. Contrary to the circuit court's ruling, the burden did not shift back for DHSMV to reestablish the accuracy of the Device. Wiggen attempted to overcome the presumption of impairment by presenting evidence that the Device failed its monthly inspection only four days after being used to test Wiggen's breath-alcohol level. However, DHSMV presented evidence that the Device passed its previous monthly inspection and that the self-diagnostic tests performed before and after Wiggen's breath-alcohol test indicated the Device was functioning properly. Additionally, Biss testified that the Device failed the subsequent inspection due to his own user error and that the Device was actually functioning properly. Given the evidence presented at the hearing, the hearing officer could have concluded that the documentary evidence and testimony presented in the record was sufficient to show that the Device was in compliance with FDLE standards and was operating normally on the day in question. The hearing officer, as the trier of fact, was responsible for resolving any conflicts in the evidence and was free to weigh and reject Wiggen's argument, as long as that decision was based on competent, substantial evidence. See Cohen v. Sch. Bd. of Dade Cnty., 450 So.2d 1238, 1241 (Fla. 3d DCA 1984).

152 So.3d at 775-76. (Emphasis added). (Footnote omitted). Wiggen lends support to the argument that even when an instrument fails a post-breath test monthly inspection, the breath test result may still be admissible where the self-diagnostic checks performed before and after the breath test indicate that the instrument was functioning properly. Of course, under Wiggen, it would appear that this argument would definitively prevail only when the failed inspection can be explained as human error (or some other non-instrument error) rather than instrument error. Nevertheless, it seems most failed inspections – especially those that don’t require the instrument to be taken out of service – can be so explained. Vuong v. Florida Department of Law Enforcement, 149 So.3d 174 (Fla. 4th DCA 2014): This case arose out of a chapter 120 rule challenge to Florida Administrative Code Rules governing the Florida Department of Law Enforcement's approval and oversight of breath test instruments. The defendants contended that the rules constituted an invalid exercise of delegated legislative authority. The administrative law judge (ALJ) rejected appellants’ arguments and the Fourth District Court of Appeal affirmed. The Court explained the arguments of the defendants as follows:

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Attempting to demonstrate the inadequacy of the rules, appellants presented evidence that, after the November 2002 amendment of rule 11D–8.003 approving the Intoxilyzer 8000 but before the Intoxilyzer 8000 was actually put into use in Florida, difficulties during testing prompted the manufacturer to determine it was necessary to drill a hole in the instrument’s exhaust purge valve. The exhaust purge valve is utilized only during simulation testing and is not involved in an actual breath test. The Intoxilyzer 8000 instruments put into use in Florida come from the manufacturer with the hole drilled in the exhaust purge valve. FDLE did not “reapprove” the Intoxilyzer 8000. Appellants also presented evidence that, in 2007, there were documented problems with the calibration of the flow sensor on some instruments. Consequently, in late 2010/early 2011, FDLE began using a flow meter to test calibration of the flow sensor. Effective in 2011, FDLE's internal guidelines require calibration of the flow sensor as part of FDLE's annual inspection. The gist of appellants' claims was that Florida Administrative Code Rules 11D–8.003, 11D–8.004, and 11D–8.006 are vague, do not provide sufficient guidelines or standards, and/or vest unbridled discretion in FDLE. Appellants complained that the rules do not require breath instrument manufacturers to provide FDLE notice of modifications to an already approved model of breath instrument; do not require FDLE to retest or reapprove breath instruments modified by the manufacturer; and do not set forth criteria or guidelines addressing the retesting or reapproval of modified instruments. They also complained of the rules’ failure to specifically require or address inspection and/or calibration of the flow sensor on the breath instrument.

149 So.3d at 175-176. The Court rejected these arguments for the following reasons:

With regard to the drilling of the hole in the exhaust purge valve, the ALJ found the evidence failed to establish the drilling of the hole affected breath test results “in any manner” or rendered the results unreliable. The ALJ similarly concluded the evidence was insufficient to establish that “the scientific reliability of reported breath test results is related to the function of an instrument's flow sensor” as “[t]he evidence establishes that the instrument will not report results of a breath alcohol test if the quantity of air provided by a test subject is insufficient.” . . . Appellants' reliance on the decisions in State v. Flood, 523 So.2d 1180 (Fla. 5th DCA 1988), State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992), and State v. Miles, 775 So.2d 950 (Fla.2000), is not persuasive. Flood and Polak were not rule challenges. In both cases, police modified the breath instrument and the trier-of-fact concluded the modification was

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“substantial” or rendered the instrument a “different machine.” See 598 So.2d at 153, 523 So.2d at 1181. Here, the manufacturer made the decision to modify the Intoxilyzer 8000 before any instruments were put into evidentiary use in Florida, and the ALJ found the evidence failed to prove the complained-of deficiencies had impacted the reliability of the breath tests. Miles did hold that the rules governing DUI blood alcohol sampling were inadequate as they failed to contain any provisions addressing preservation of the blood sample pending testing, and all the experts agreed that proper preservation was essential to quality control. See 775 So.2d at 955. Here, however, the significance of the drilling of the hole in the exhaust purge valve and calibration of the flow sensor was disputed, and the ALJ found the evidence failed to establish the complained-of deficiencies had any impact on the reliability of breath alcohol tests.

Id. at 175-176. (Emphasis by the Court).

11. The post-Muldowney search for the “source code” and other “full

information” DHSMV v. Berne, 49 So.3d 779 (Fla. 5th DCA 2010), cert. dismissed, 84 S.3d 257 (Fla. 2012): Although this ruling arises from a DUI administrative suspension hearing rather than a criminal prosecution, it should effectively defeat arguments some defense attorneys have made regarding the "approval" of the Intoxilyzer 8000. It should also assist in defending against "source code" arguments. The Opinion holds that the Intoxilyzer 8000 is an approved instrument; that an "approval study" with the 8000.26 software was not required by FDLE rules; and that instead, only an "evaluation" of said software was necessary (and was properly done). The Opinion also quashes the lower court ruling from the Orange County circuit court which had specifically relied on the ruling in the en banc order of State v. Atkins, 16 Fla. L. Weekly Supp. 251a (Fla. Orange County Court June 20, 2008). Atkins had relied in large part on the theory that the Intoxilyzer 8000 was not an "approved" instrument as its rationale for why the source code from the Intoxilyzer 8000 was "material" and thus subject to mandatory disclosure to DUI defendants. A few other rulings from other county courts have utilized this rationale also in ordering the State to disclose the source code. It therefore appears that a major premise for Atkins' source code holding is no longer valid. Note that the Fifth District later rejected an additional argument regarding the “approval” of the Intoxilyzer 8000 in Klinker v. DHSMV, 118 So.3d 835 (Fla. 5th DCA 2013), which case was previously discussed in this Update at pages 58-59. Ulloa v. CMI, Inc., 133 So.3d 914 (Fla. 2013): Here, the Florida Supreme Court settled a conflict between the Second District Court of Appeal ruling in CMI, Inc. v. Landrum, 64 So.3d 693 (Fla. 2d DCA 2010) and the Fifth District Court of Appeal ruling in CMI, Inc. v. Ulloa, 73 So.3d 787 (Fla. 5th DCA 2011). The conflict arose over the issue of whether, in a criminal case, subpoenas can be served on an out-of-state corporation’s registered agent in Florida to require that out-of-state, nonparty corporation to produce documents or materials located out-of-state, without utilizing the provisions of chapter 942, Florida Statutes. Chapter 942 is known as the “Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings” and provides a statutory process by which parties can subpoena out-of-

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state, nonparty witnesses. In this case, after certain Florida criminal defendants were charged with DUI, they sought to obtain the computer source codes of the intoxilyzer equipment manufactured by CMI, Inc., a Kentucky-based corporation. The defendants attempted to utilize subpoenas duces tecum for the source code by serving CMI's registered agent in Florida, even though this source code material was not located in Florida. The Second District in Landrum relied on the Third District’s Opinion in General Motors Corp. v. State, 357 So.2d 1045 (Fla. 3d DCA 1978) which had held that the Uniform Law does not apply to subpoenas duces tecum seeking only the production of documents without any request for the testimony of an out-of-state witness. Accordingly, the Second District in Landrum ruled that the circuit court properly followed the principles set forth in General Motors in authorizing the state issued subpoena (and in denying CMI's motion to quash the subpoena) and therefore “did not depart from the essential requirements of the law by violating a clearly established principle of law.” 64 So.3d at 695. Subsequently, the Fifth District in Ulloa held that criminal defendants must follow the procedures set forth in the Uniform Law when requesting this material from out-of-state, nonparty witnesses and that service on CMI's registered agent was insufficient to compel CMI to produce the source codes. The Court then certified conflict between its decision and the decisions in Landrum and General Motors. The Florida Supreme Court concluded that in criminal cases, in order to subpoena documents located in another state that are in the possession of an out-of-state nonparty, the party requesting the documents must utilize the procedures of the Uniform Law, as set forth in chapter 942. The Court found that while the designation by an out-of-state corporation of a registered agent in Florida has many legal ramifications, as set forth in chapter 607 of the Florida Statutes, that designation does not allow for service of subpoenas on a registered agent to compel production in this state of out-of-state documents belonging to an out-of-state, nonparty corporation in connection with a criminal case, beyond that set forth in the Uniform Law. The Court reached this conclusion based on its determination that the subpoena power to compel the production of out-of-state documents belonging to out-of-state nonparty witnesses in a criminal case derives from the same source as the power to compel the attendance of out-of-state, nonparty witnesses – i.e., the Uniform Law. Accordingly, the Court disapproved the decisions in General Motors and Landrum and approved the Fifth District’s decision in Ulloa.

16. Low sample volume/volume not met: “valid” breath test vs. refusal (new topic)

DHSMV v. Cherry, 91 So.3d 849 (Fla. 5th DCA 2011): In this administrative license suspension case, the driver failed to follow instructions during the breath testing procedures. Specifically, she kept biting the mouth piece, barely blowing into it. She also repeatedly asked for a blood test. Despite her lack of cooperation, the equipment-generated Breath Alcohol Test Affidavit (BATA) reflected readings of .199 and .168. However, the BATA further reflected that both samples suffered from deficient breath volume (“volume not met”), and, therefore, were “Not Reliable to Determine Breath Alcohol Level.” The police determined that the driver had refused the breath test and advised the driver that her license would be suspended for one year for refusing. Based on the evidence presented at the formal review hearing, the hearing officer agreed that these circumstances constituted a refusal and upheld the administrative suspension. On certiorari review, the circuit court invalidated the suspension, concluding that the driver did

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not refuse because she did provide two breath samples and also because she should have been assisted in obtaining an independent blood test. DHSMV then filed a petition for second tier certiorari review, and the Fifth District Court of Appeal reversed and reinstated the suspension. The Fifth District explained:

In this case, there was competent, substantial evidence in the record from which the hearing officer could conclude that, although Ms. Cherry did not expressly refuse to submit to a breath alcohol test, she did so by purposely avoiding the submission of valid samples. Despite her evasion, the BATA did report two breath alcohol readings; however, the same BATA also registered that these two readings were unreliable for purposes of determining breath alcohol level due to Ms. Cherry's failure to supply sufficient breath volume during each of her sample submissions.

91 So.3d at 855. The Court then pointed out that the applicable rule defines an “Approved Breath Alcohol Test” as follows:

[A] minimum of two samples of breath collected within 15 minutes of each other, analyzed using an approved breath test instrument, producing two results within 0.020 g/210L, and reported as the breath alcohol level. If the results of the first and second samples are more than 0.020 g/210L apart, a third sample shall be analyzed. Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be reliable, shall be acceptable as a valid breath alcohol level.

Id., quoting Florida Administrative Code Rule 11D–8.002(12). (Emphasis added). The Fifth District concluded the driver did not provide a “valid” breath test under this rule because the deficient samples, as indicated on the BATA itself, were “Not Reliable to Determine Breath Alcohol Level.” Further, because the driver did not properly submit to the breath test, she was not entitled to require the police to assist her in obtaining an independent blood test. (See further discussion of the independent blood test issue in the Cherry case at page 109 of this Update). The Fifth District criticized the circuit court’s opinion for relying upon the BATA to support its conclusion that the two breath samples qualified as a valid breath test “without assigning any significance to the ‘volume not met’ language that was co-located with each breath test result on the BATA form itself.” Id., at 856. The Court added that “[t]he circuit court's opinion fails even to mention the express language on the BATA that neither of Ms. Cherry's breath samples was ‘Reliable to Determine Breath Alcohol Level.’ ” Id. Although the Fifth District in Cherry held that the driver’s actions in that case constituted a refusal, this ruling does not automatically preclude the State from offering into evidence a breath test containing one or more “volume not met” samples in order to prove the defendant’s breath alcohol level. A deficient breath sample constitutes a refusal because the following sentence in rule 11D–8.002(12) says so: “Refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test.” But the next sentence in the rule provides that deficient samples are sometimes regarded as “valid” – under the right circumstances: “Notwithstanding the foregoing sentence, the result(s) obtained, if proved to be

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reliable, shall be acceptable as a valid breath alcohol level.” In fact, under the rule, even where a defendant provides only one breath sample and refuses to provide another, or provides one valid breath sample and one or more additional invalid samples (“the result(s) obtained”), this situation could also constitute a valid breath alcohol test “if proved to be reliable.” See, e.g., State v. Schmimming, 16 Fla. L. Weekly Supp. 321 (Fla. Leon Cty. Ct. Jan. 14, 2009) (defendant provided one “full volume sample” and three “low volume blows;” court recognized that even where the normal requirements of rule 11D-8.002(12) are not met, “the results or result obtained may be admitted if proved reliable through other means,” and cited a prior case for the proposition that “the State can still establish the reliability of the test results or result obtained by laying the necessary scientific predicate;” accordingly, court ruled that the one full volume breath sample was admissible where expert testimony satisfied the traditional scientific predicate, including testimony demonstrating that the reading yielded by the instrument “reflected the defendant’s actual breath alcohol content.”). Remember that the Cherry case was an administrative license suspension case. Such cases rarely involve expert testimony regarding the reliability of breath samples, and Cherry was no exception. Accordingly, there was no testimony or other evidence in that case to prove the reliability of the “result(s) obtained.” The same can be said for the three circuit court cases cited in Cherry involving the application of rule 11D–8.002(12) to “volume not met” samples on the Intoxilyzer 8000. (In fact, in one of those cases, Kenyon v. DHSMV, 16 Fla. L. Weekly Supp. 899a (Fla. 4th Cir.Ct.2009), the circuit court stated: “No other evidence in the record exists to support a finding that Petitioner’s samples were otherwise valid.”). However, expert testimony is much more prevalent in criminal cases. Moreover, unlike administrative suspension cases, where a refusal gives rise to a one year license suspension, a refusal in a criminal case serves only to demonstrate a defendant’s consciousness of guilt. The State in criminal cases therefore has an incentive to offer into evidence deficient breath samples involving high breath alcohol levels whenever reliability of the “result(s) obtained” can be proven. Accordingly, in all cases where the defendant “refus[es] or fail[s] to provide the required number of valid breath samples,” prosecutors should contact the FDLE ATP Inspector for their region (or Brett Kirkland, the ATP Program Director) to determine whether, in the opinion of FDLE, “the result(s) obtained” can be “proved to be reliable.” If so, the ATP Inspector or Mr. Kirkland can provide expert testimony to prove reliability at a hearing on the admissibility of such breath test “result(s).”

17. Are search warrants required in breath test cases? (new topic) Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016): In this case, the United States Supreme Court agreed to consider three separate cases involving two rulings from the Nevada Supreme Court and one ruling from the Minnesota Supreme Court. All three cases dealt with a criminal refusal to submit statute in one manner or another, but each case had a different factual setting. Ultimately, the Court found that a statute criminalizing the refusal of a warrantless breath test did not violate the Fourth Amendment but it effectively found the statutes in the case before it which criminalized the refusal of a warrantless blood draw did violate the Fourth Amendment. (The discussion in Birchfield regarding the impact of the Fourth

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Amendment on warrantless blood tests is considered in more detail later in this Update under the topic “Are search warrants required in order to obtain blood draws?” pages 98-109). Petitioners Birchfield and Bernard each refused to undergo a chemical test for alcohol and each was prosecuted for the crime of refusal to submit, but Birchfield’s crime was refusing a breath test and Bernard’s crime was refusing a blood test. Each of these petitioners argued that the Fourth Amendment prohibited criminalizing the refusal to submit to a warrantless test. Petitioner Beylund did not refuse at all – rather, he consented to blood sample – but his license was then suspended in an administrative proceeding based on test results that revealed a very high blood alcohol level. Beylund’s argument was that his consent to the blood test was coerced by the officer’s warning that refusing to consent would itself be a crime. All of these arguments were rejected by the state supreme courts. The United States Supreme Court granted certiorari in all three cases and consolidated them for argument “in order to decide 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.” 136 S.Ct. at 2172. The Court initially discussed the history of the “drunk driving” problem in this country and the continually developing methods of combatting the problem. These methods have included the creation of presumptions of impairment at certain levels of blood alcohol concentration (BAC), followed by laws determining that certain BAC’s were illegal per se, and the overall lowering of such minimum levels from .15 to .10 to .08. Additionally, the Court noted that breath testing eventually overtook blood testing as most common and economical method of calculating BAC, partly due its ease of use because no separate laboratory is required and partly due to the desire to avoid violent confrontations with those who resist having blood drawn. The Court noted also that the quality and regulation of breath testing instruments have improved greatly over the years. The Court then explained: “Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BAC made it necessary for States to find a way of securing such cooperation.” Id. at 2168. This led to the creation of “implied consent” statutes to provide incentives for defendants to cooperate with chemical testing. Such laws provided that cooperation with BAC testing was a condition of the privilege of driving on state roads and that the privilege would be rescinded if a suspected drunk driver refused to honor that condition. The Court then observed that in recent decades, the States and the Federal Government have toughened drunk-driving laws, by increasing penalties for recidivists and for drivers with a BAC level that exceeds a higher threshold. The Court noted that “those efforts have corresponded to a dramatic decrease in alcohol-related fatalities.” Id. at 2169. Finally, the Court observed that in order to combat the problem of high test refusal rates, some states have begun to enact laws making it a crime to refuse to undergo testing. The Court seemed to suggest that such laws have been successful, noting in particular that Minnesota’s refusal rate is “half the 24% rate reported for 1988, the year before its first criminal refusal law took effect.” Id. As the Court had stated at the beginning of its Opinion: “The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches.” Id. at 2166-2167.

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After describing the differences in the factual settings for each petitioner, the Court further refined the issue as follows:

Despite these differences, success for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. . . .

Id. at 2172. Thereafter, the Court observed that although the text of the Fourth Amendment does not specify when a search warrant must be obtained, “usually” a warrant must be secured. Nevertheless, said the Court, this “usual” requirement is subject to a number of exceptions. The Court then noted that one such exception – the exigent circumstances exception – may apply in DUI cases depending on the overall circumstances, as was addressed in Schmerber v. California, 384 U.S. 757, 767–768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and as clarified further in Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). However, as the Court explained, the McNeely Court had noted that other exceptions to the warrant requirement “apply categorically” rather than in a “case-specific” fashion. Further, “[o]ne of these, as the McNeely opinion recognized, is the long-established rule that a warrantless search may be conducted incident to a lawful arrest.” Id. at 2174. Accordingly, the Court stated: “In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.” Id. The Court then traced the history of the search-incident-to-arrest doctrine, noting that it actually predated the Nation’s founding and that it was well established prior to the Court ever addressing it as part of Fourth Amendment analysis. The Court then stated:

When this Court first addressed the question, we too confirmed (albeit in dicta) ‘the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime.’ Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The exception quickly became a fixture in our Fourth Amendment case law.

Id. at 2175. Thereafter, as the Court explained, Supreme Court decisions clarified that the exception covered not only the search of the arrestee but also the area within the arrestee’s immediate control – but those decisions “reached results that were not easy to reconcile.” Id. As the Court explained, one difficulty with the “categorical rule” regarding the search incident to arrest exception (as opposed to the “case-by-case adjudication” of the exigent circumstances exception) is that occasionally courts are confronted with the issue of how the rule should be

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applied in situations that could not have been envisioned when the Fourth Amendment was adopted. Such was the situation, the Court noted, in the recent case of Riley v. California, 134 S.Ct. 2473 (2014), which concerned a search of data contained in the memory of a modern cell phone. The Court quoted the following passage from Riley: “Absent more precise guidance from the founding era, we generally 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, quoting Riley, at 134 S.Ct. 2484. The Court then explained:

Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell phones, but here, as in Riley, the founding era does not provide any definitive guidance as to whether they should be allowed incident to arrest. Lacking such guidance, we engage in the same mode of analysis as in Riley: we examine “the degree to which [they] intrud[e] upon an individual’s privacy and ... the degree to which [they are] needed for the promotion of legitimate governmental interests.’ ” Ibid.

Id. (Footnote omitted). Given this mode of analysis, the Court reached different conclusions regarding the intrusiveness of breath tests as opposed to the intrusiveness of blood tests. The Court found that the physical intrusion from breath tests is almost negligible because such tests “do not require piercing the skin” and entail “a minimum of inconvenience.” Id. at 2176, quoting Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 625 (1989). Further, the effort required in submitting to a breath test “is no more demanding than blowing up a party balloon.” Id. at 2177. Moreover, requiring an arrestee to insert the instrument’s mouthpiece into his or her mouth and to exhale “deep lung” air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek, as was allowed in Maryland v. King, 569 U.S. 435, 133 S.Ct. 1958 (2013), or than scraping underneath a suspect’s fingernails, as was allowed in Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). Additionally, breath tests, unlike DNA samples, yield only a BAC reading and leave no biological sample in the government’s possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest. The Court’s discussion as to why blood tests are more intrusive than breath tests and thus fail the search-incident-to arrest analysis is considered later in this Update at pages 102-104. Addressing the States’ asserted need to obtain BAC readings from those arrested for DUI, the Court noted the “paramount interest” that the States (and the Federal Government) have in preserving the safety of public highways. Also, although the number of deaths and injuries caused by motor vehicle accidents has declined over the years, the Court found that the statistics are still staggering. And getting the drunk drivers off the road is not the only legitimate interest the States have: “They also have a compelling interest in creating effective ‘deterrent[s] to drunken driving’ so such individuals make responsible decisions and do not become a threat to others in the first place.” Id. at 2179, quoting Mackey v. Montrym, 443 U.S. 1, 18, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). Finally, the Court recounted all the steps the States have taken over the years to combat drunk driver, as described above, and noted that NHTSA statistics have shown

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that license suspensions alone have been insufficient to persuade the most dangerous offenders, such as those who drive with a BAC significantly above the current limit of 0.08% and recidivists to agree to a test that would lead to severe criminal sanctions. With regard to the degree to which criminal refusal statutes are needed for the promotion of legitimate governmental interests, the Court concluded: “The laws at issue in the present cases—which make it a crime to refuse to submit to a BAC test—are designed to provide an incentive to cooperate in such cases, and we conclude that they serve a very important function.” Id. The Court then responded to the argument that “requiring a warrant for BAC testing in every case in which a motorist is arrested for drunk driving would not impose any great burden on the police or the courts” as follows:

If a search warrant were required for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped. And even if we arbitrarily singled out BAC tests incident to arrest for this special treatment, as it appears the dissent would do, see post, at 12–14, the impact on the courts would be considerable. The number of arrests every year for driving under the influence is enormous—more than 1.1 million in 2014. FBI, Uniform Crime Report, Crime in the United States, 2014, Arrests 2 (Fall 2015). Particularly in sparsely populated areas, it would be no small task for courts to field a large new influx of warrant applications that could come on any day of the year and at any hour. In many jurisdictions, judicial officers have the authority to issue warrants only within their own districts, see, e.g., Fed. Rule Crim. Proc. 41(b); N.D. Rule Crim. Proc. 41(a) (2016–2017), and in rural areas, some districts may have only a small number of judicial officers.

Id. at 2180. Ultimately, the Court explained its conclusion as to the overall issue regarding the search-incident-to-arrest issue thusly:

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude 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. We reach a different conclusion with respect to blood tests. Blood 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. at 2184. Accordingly, the Court upheld the conviction of Petitioner Bernard. As the Court explained:

Bernard, on the other hand, was criminally prosecuted for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving, an

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arrest whose legality Bernard has not contested. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.

Id. at 2186. (Emphasis by the Court). Note that the Court never addressed the alternative “implied consent” argument in the context of the criminalization of a refusal to submit to a warrantless breath test – probably because the Court had already determined that the search-incident-to-arrest exception justified such criminalization. But it did address the implied consent argument in the context of the criminalization of a refusal to submit to a warrantless blood test. That issue, as well as further discussion of how the Court completed its analysis regarding the search-incident-to-arrest theory as applied to blood tests, is considered later in this Update under the topic “Are search warrants required in order to obtain blood draws?” at pages 98-109. The issue of whether a criminal prosecution of a refusal to submit a warrantless urine test survives constitutional scrutiny is considered in the topic “Are search warrants required in urine test cases?” at pages 81-82. Williams v. State, 210 So.3d 774 (Fla. 5th DCA 2017): This case was originally decided by the Fifth District Court of Appeal in Williams v. State, 167 So.3d 483 (Fla. 5th DCA 2015). At that time, the Court addressed a certified question involving a challenge to section 316.1939 arising out of a prosecution for refusing to submit to a warrantless breath test. The challenge was based on a combination of Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) and the “unconstitutional conditions” doctrine. The Fifth District rejected this challenge and found the statute constitutional. The Court determined that a warrantless post-arrest breath test was permissible under the Fourth Amendment based on a “general reasonableness” theory. Because the case involved a refusal to submit to a breath test, the Court did not address whether the statute is unconstitutional in the context of a blood or urine test. About one year after the Fifth District decided its original Williams case, the United States Supreme Court decided the case of Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) (Birchfield was discussed in this Update at pages 75-80). Birchfield held, among other things, that a breath test administered without a warrant is permissible as a search incident to a lawful arrest for DUI and therefore a person could be constitutionally prosecuted for refusing to submit to a warrantless breath test. Thus Birchfield effectively approved the result in Williams but under a different (and more traditional) theory. About five months after Birchfield was decided, the Florida Supreme Court in Williams v. State, 2016 WL 6637817 (Fla. Nov. 9, 2016) vacated the Fifth District’s Williams decision and remanded the case back to the Fifth District for reconsideration in light of Birchfield. On remand, the Fifth District again upheld the constitutionality of section 316.1939, as it pertains to a refusal to submit to a breath test; this time, the Fifth District adopted the holding in Birchfield that breath-alcohol tests are permissible under the search incident to arrest exception to the Fourth Amendment’s warrant requirement. 210 So.3d at 776.

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With regard to the impact of Williams and Birchfield on the issue of a refusal to submit to a urine test, see the discussion of those cases under the topics “Are search warrants required in urine test cases?” (discussed next). See also the discussion of blood test refusals under the topic “Are search warrants required in order to obtain blood draws?” at pages 98-109 of this Update.

C. Urine Tests

1. Are search warrants required in urine test cases? (new topic) Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016): In this case, the United States Supreme Court found that a statute criminalizing the refusal of a warrantless breath test did not violate the Fourth Amendment but it effectively found that a statute which criminalized the refusal of a warrantless blood draw did violate the Fourth Amendment. The Court did not address urine tests at all, except to state that “urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one.” 136 S.Ct. at 2168, n.1. Williams v. State, 210 So.3d 774 (Fla. 5th DCA 2017): This case dealt with breath tests, not urine tests, but a comment made in a footnote may have some bearing on the warrantless urine test issue. The case re-affirmed its original ruling in Williams v. State, 167 So.3d 483 (Fla. 5th DCA 2015) but changed its rationale as a result of Birchfield, supra. Adopting the Birchfield search incident to arrest rationale, the Fifth District again upheld the constitutionality of section 316.1939 (Florida’s Refusal to Submit statute) as it pertained to a refusal to submit to a breath test. Recognizing that the search incident to arrest theory in Birchfield applied only to warrantless breath tests, the Fifth District provided the following footnote:

Although the certified question tracks the statutory language by including blood and urine tests as well as breath tests, Williams challenges the statute solely as applied to his refusal to submit charge. It is undisputed that Williams was only asked to undergo a breath test, so we need not address the legality of blood and urine tests. We note, however, that the United States Supreme Court’s decision in Birchfield makes clear that blood and urine tests raise more substantial privacy concerns and are not subject to the search-incident-to-arrest exception to the Fourth Amendment’s general warrant requirement. See Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (2016).

Id. at n.1. (Emphasis added). Actually, with regard to the search incident to arrest exception, the Birchfield Court explicitly stated only that this exception did not apply to blood tests. As noted in the above discussion of Birchfield, the Birchfield Court did not address urine tests at all, except to state that “urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one.” 136 S.Ct. at 2168, n.1. In any event, the issue regarding whether a criminal prosecution of a refusal to submit a warrantless urine test survives constitutional scrutiny will likely depend on whether the Courts view the intrusiveness of a urine test as more akin to a blood test (intrusive) or a breath test (not intrusive). Although the Fifth District misspoke as to what the Birchfield Court said about urine tests, the above-quoted dictum from Williams provides the first indication by a Florida appellate court (but not at all a conclusive one) of how this issue will be decided.

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For a more complete discussion of Williams and Birchfield in the context of breath test refusals, see the topic “Are search warrants required in breath test cases?” at pages 75-80 of this Update. As to blood test refusals, See the topic “Are search warrants required in order to obtain blood draws?” at pages 98-109 of this Update. D. Blood Tests (“Legal Blood”)

1. Implied Consent Law

State v. Murray, 51 So.3d 593 (Fla. 5th DCA 2011): Court holds that the defendant voluntarily submitted to a blood draw and therefore, contrary to the ruling by the trial, the officers were not required to inform the defendant about the provisions of the implied consent laws. For further explanation of the Court’s holding, see the more detailed discussion of this case and related cases below at pages 91-92 in the context of the topic “Consent.”

2. FDLE rules; predicate for admissibility of blood tests; substantial compliance

State v. Kleiber, 175/319 (Fla. 5th DCA 2015): Here, a dry gauze was used to cleanse the defendant’s arm, rather than an antiseptic as required by Alcohol Program Testing Rule 11D-8.012(7). The State and the Defense presented conflicting expert testimony on whether the use of the dry gauze would have undermined the reliability of the blood tests results. Without addressing the expert testimony, the trial court suppressed the results because the rule was not “strictly complied with.” On appeal, the Fifth DCA reversed, holding that the trial court should have applied a substantial compliance, not strict compliance, analysis. The case was remanded to the trial court to consider whether violation of the rule was serious or minor, i.e., whether the blood test would still be reliable notwithstanding the use of dry gauze rather than the antiseptic. In a footnote, the Court added that even if suppression was required under 316.1933, the State could still seek to admit the results under the traditional scientific predicate. Bedell v. State, 250 So.3d 146 (Fla. 1st DCA May 31, 2018): In this case, the defendant sought to exclude blood test results because the samples were not “inverted several times to mix the blood with the preservative and coagulant” as required by rule 11D-8.012(3). After the evidentiary hearing, the trial court denied this motion based on its finding that the collection and handling of the blood samples “substantially complied” with the requirements of rule 11D-8.012(1)-(6) and that there was no evidence of a substantial adverse effect from failing to strictly follow subsection (3) of the rule. On appeal, the First DCA noted that section 316.1932(1)(f) requires that blood and breath tests “shall be administered at the request of a law enforcement officer substantially in accordance with the rules” governing approved method. Accordingly, the Court found that the trial court applied the proper standard to the evidence presented, stating:

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The court’s finding that Appellant “presented no evidence of a substantial adverse effect’ from the handling of the vials, which were incidentally tipped and moved immediately after the blood was drawn, but not “inverted several times,” as rule 11D–8.012(3) requires, was not an improper shift of the burden of proof to Appellant. Once the State showed substantial compliance with the rule, Appellant was free to present any evidence that the deviation affected the accuracy of the test. The court’s statement merely noted that Appellant did not present any such evidence.

250 So.3d at 149-150. 4. Serious bodily injury or death cases; probable cause to draw blood (includes new topic of probable cause based on fellow officer rule)

State v. Salle-Green, 93 So.3d 1169 (Fla. 2d DCA 2012): Both legal and medical blood results were challenged in DUI Manslaughter case. Requesting trooper identified the blood kit and associated paperwork, but could not independently remember what led him to request the blood draw to be performed. He confirmed he did not get any information from nurse. The nurse testified that she did not remember the events of the evening but confirmed her signature on the kit and described her general procedures including it was hospital policy to give law enforcement verbal information of the blood alcohol level, although she could not remember if she told the trooper that in this case. The trial court suppressed the legal blood because the witnesses “were not able to provide this court with the reason why this blood was requested.” The Second District Court of Appeal affirmed as to this ruling. As to the medical blood, the Court reversed the suppression of the hospital records for reasons discussed in the Medical Blood section of this Update, below at page 103. Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017): In this case, the defendant argued on appeal that the trial court erred by admitting the blood test results because the law enforcement officer did not have probable cause to believe the defendant was under the influence of alcoholic beverages before requiring the defendant to submit to the blood draw as required by section 316.1933(1)(a). [Note that no issue was raised as to whether a search warrant should have been obtained pursuant to the case of Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013); (McNeely is discussed later in this Update at page 98)]. The State countered that the defendant had consented to the blood draw. The State further asserted that probable cause existed for the officers to believe that the defendant was driving under the influence of alcohol at the time of the car crash. The trial court denied the motion to suppress and the Third District Court of Appeal affirmed on both grounds. See, Montes-Valeton v. State, 141 So.3d 204 (Fla. 3d DCA 2014). However, on further review, the Florida Supreme Court reversed on both grounds. On the issue of probable cause, the Third District had relied on the fellow officer rule. Specifically, the Third District provided the following analysis:

[A]lthough Sergeant Luis Tejera is the officer that smelled the odor of alcohol coming from the defendant's breath and determined that the defendant was the

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driver of the vehicle involved in this single-vehicle accident in which the passenger was ejected and was transported from the scene in serious condition, under the fellow officer rule, Trooper Molina had probable cause to request that the defendant provide the blood drawn by fire rescue. The fellow officer rule provides that the arresting officer or, as here, the officer that requested the blood draw, may rely on the collective knowledge of the police officers involved in the investigation. Voorhees v. State, 699 So.2d 602, 609–10 (Fla.1997). The Florida Supreme Court in Voorhees held that:

In broad terms, the collective knowledge of police investigating a crime is imputed to each member under a rule of law often called the “fellow officer rule” or “collective knowledge doctrine.” The exact contours of the rule are not entirely clear. Florida courts have tended to frame this doctrine in very sweeping terms, ....

Id. at 609 (quoting Johnson v. State, 660 So.2d 648, 657 (Fla.1995)). The Voorhees Court also specifically noted the holdings in United States v. Butler, 74 F.3d 916, 921 (9th Cir.1996), and People v. Ramirez–Portoreal, 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207, 215 (1996). Voorhees, 699 So.2d at 609–610. The Voorhees Court noted that in Butler, the Ninth Circuit found that “probable cause can be demonstrated through the collective knowledge of police officers involved in an investigation even if some of the information known to other officers is not communicated to the arresting officer.” Voorhees, 699 So.2d at 610 (citing Butler 74 F.3d at 921). Voorhees further recognized that in Ramirez–Portoreal, the Court of Appeals of New York found that the fellow officer rule applies even if the arresting officer lacks independent personal knowledge sufficient to establish probable cause. Voorhees, 699 So.2d at 609 (citing Ramirez–Portoreal, 643 N.Y.S.2d 502, 666 N.E.2d at 215). The arrest is lawful if the officer acts upon the direction of or as a result of the communication with another officer so long as the police as a whole are in possession of information constituting probable cause. Voorhees, 699 So.2d at 609; see also Strickroth v. State, 963 So.2d 366, 368 (Fla. 2d DCA 2007) (noting that the collective knowledge of the police investigating a crime is imputed to each member under the fellow officer rule, which can involve direct communications between officers who have sufficient information and the officer who stops the suspect, or it can involve general communications among officers when at least one officer possesses the required level of suspicion); State v. Bagley, 844 So.2d 688, 690 (Fla. 3d DCA 2003) (reversing the trial court's order suppressing the evidence and finding that the trooper who stopped the van had probable cause based on the combined knowledge of the officers who were investigating the crimes and the BOLO they issued based on the fellow officer rule); Smith v. State, 719 So.2d 1018, 1022 (Fla. 3d DCA 1998) (finding that “[t]he ‘fellow officer’ rule is applicable whether the communication is from a superior, a fellow officer with the same police department, between different agencies or agencies at different levels within a state, between officials in different states, [or] between federal and

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state or local authorities[,]” and concluding that the knowledge of one officer is presumed to have been shared by others cooperating in an investigation, and thus the officer who stopped Smith was entitled to assume under the fellow officer rule that the officer requesting aid had sufficient information to support the stop). We, therefore, find no error in the admission of the blood test results in this case.

141 So.3d at 207-208. (Emphasis added). The Third District’s opinion did not address what communication had occurred between the officer who had probable cause to order a blood draw (Sergeant Luis Tejera) and the officer who obtained the blood draw (Trooper Molina). However, it was clear from the above-quoted passage that the Third District was relying on case law (including the Florida Supreme Court’s opinion in Voorhees v. State, 699 So.2d 602, 609–10 (Fla.1997)) that the communication details were not required in order to establish probable cause. Indeed, as the Third District noted, under the fellow officer rule, an arrest (or in this case, a blood draw) “is lawful if the officer acts upon the direction of or as a result of the communication with another officer so long as the police as a whole are in possession of information constituting probable cause.” 141 So.3d at 208, citing, Voorhees, at 699 So.2d at 609. (Emphasis added). As it turns out, the substance of the communication between Sgt. Tejera and Trooper Molina became the basis for the Florida Supreme Court’s reversal of the Third District’s decision. It appears that the Supreme Court initially recognized that Sgt. Tejera had probable cause to order a blood draw – the opinion indicated that Sgt. Tejera noticed the defendant’s vehicle rolled over on its side and that the defendant was “worried, disoriented, confused and that he emitted an odor of alcohol about his breath,” 216 So.3d at 477. However, notwithstanding that “Sergeant Tejera delegated the role of lead traffic crash investigator to Trooper Victor Molina and thereby engaged in general communications with Trooper Molina,” id., (emphasis added), the Supreme Court focused instead on this point: “There is no indication in the record that Sergeant Tejera communicated his concerns about Montes–Valeton’s possible intoxication to Trooper Molina or to any other law enforcement officer.” Id. In addressing the fellow officer issue, the Supreme Court did not acknowledge the recitation of case law and the principles contained therein from the Third District’s passage quoted above. The Court did begin its analysis by quoting the following passage from Johnson v. State, 660 So.2d 648, 657 (Fla. 1995): “In broad terms, the collective knowledge of police investigating a crime is imputed to each member under a rule of law often called the ‘fellow officer rule’ or ‘collective knowledge doctrine.’ ” Id. at 478. But immediately thereafter, the Court stated:

The primary purpose of the fellow officer rule is “to assist officers investigating in the field to make arrests and conduct searches” because “an officer in the field may need to act immediately based upon what he or she is told by a fellow officer.” State v. Bowers, 87 So.3d 704, 707–08 (Fla. 2012). “The fellow officer rule allows an arresting officer to assume probable cause to arrest a suspect from information supplied by other officers.” Voorhees, 699 So.2d at 609.

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Id. at 478. (Emphasis by the Supreme Court in Montes-Valeton). Thus, after initially recognizing the broad notion that the fellow officer rule imputes knowledge to each law enforcement officer involved in an investigation of a crime based on “collective knowledge,” the Court immediately minimized the breadth of this doctrine and emphasized the importance of direct communication between officers. The Court then characterized the significance of its prior Voorhees opinion in narrow terms:

In Voorhees, two men fled from Florida to Mississippi after committing a murder. Id. at 605. Thereafter, Mississippi officers offered both men a place to stay in the local jail on a cold and rainy evening in accordance with local custom. Id. Both men accepted and Voorhees provided the officers with a fictitious name. Id. The next day, the officers ran a check on Voorhees' fictitious name and would not permit him to leave the jail until he provided his true identity. Id. at 605–06. Voorhees called a friend to confirm his fictitious name, but the friend instead notified the Mississippi officers that Pasco County officers were looking for Voorhees in connection with a murder. Id. at 606. The Mississippi officers then called the Pasco County Sheriff's Department which confirmed that Voorhees was wanted in connection with a murder. Id. This Court found that “Voorhees’ detention was legal beginning at the time that the Mississippi officers became aware that Voorhees and Sager were wanted for a murder in Pasco County.” Id. at 610. Prior to this point in time, the Mississippi officers and their Pasco County counterparts were involved in unrelated investigations and had not engaged in any communications regarding the murder investigation. But once the Pasco County officers communicated the critical fact that Voorhees was wanted for murder to the Mississippi officers, the fellow officer rule applied and the detention of Voorhees by the Mississippi officers became legal. See id. We reaffirm our holding in Voorhees that “[t]he fellow officer rule allows an arresting officer to assume probable cause to arrest a suspect from information supplied by other officers.” Id. at 609 ([Emphasis by the Supreme Court in Montes-Valeton]. Consistent with Voorhees, we recognize that the fellow officer rule does not allow an officer to assume probable cause for an arrest or a search and seizure from uncommunicated information known solely by other officers. Id.

Id. at 478-79. (Emphasis added, except where shown otherwise). The above-quoted passage overstates the facts and understates the holding of Voorhees. Although the Court in Voorhees did, later in its opinion, refer to the communication between Pasco County officers and the Mississippi officers in shorthand fashion as “Voorhees was wanted for murder in Pasco County,” the actual communication was explicitly stated in the factual recitation of the Voorhees opinion as follows:

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At around 7 a.m. the next morning, Voorhees was told he could not leave the jail until he provided the officers with a true identification. By 12:30 that afternoon, Sager had told Mississippi officers his real name, which checked out. Voorhees said that he could prove who he was by calling a friend in Jacksonville, Florida. He telephoned Tony Watson and stated that he was James Densmore, was in Mississippi, and wanted Watson to verify Voorhees' identity as Densmore to the officer so that he could be released. The officer then spoke to Watson, who identified the man in the station in Mississippi as Donald Voorhees. Moreover, Watson told the Mississippi officer that a police officer from Pasco County, Florida, was looking for Voorhees and Sager in an attempt to ask them about a murder in Pasco County. Watson gave the Mississippi officer a telephone number for the Pasco County officer. Immediately thereafter, the Mississippi officer asked Voorhees if his name was Voorhees. Voorhees said “yes” and gave that officer another date of birth and social security number. The Mississippi officer then told Voorhees that officers from the Pasco County Sheriff’s Department wanted to talk to him and Sager about a murder. The Mississippi officer told Voorhees and Sager that they could not leave until he found out what the Pasco County officers wanted. He then placed Voorhees and Sager in separate cells. Next, the Mississippi officer went back to his desk and called the Pasco County Sheriff's Department. An officer in that department confirmed that Pasco County officers were looking to talk to Voorhees and Sager about a murder and that these officers would go to Mississippi to talk to Voorhees and Sager later that same day. After relating this information to Voorhees, the Mississippi officer allowed Voorhees to tell Sager about the Pasco County officers coming to talk to them about a murder. The officer overheard Voorhees tell Sager: “Everything will be alright. I'll take care of this.” This occurred between 2 and 2:30 p.m.

699 So.2d at 606. (Emphasis added). Thus, it is clear that Pasco County officers did not tell Mississippi officers that Voorhees “was wanted for murder;” rather, they stated only that Pasco County officers wanted to “talk to Voorhees and Sager about a murder.” (Emphasis added). This information clearly did not constitute probable cause to arrest for a crime. As shown in the following passage from Voorhees, the reason why the Court in Voorhees found the arrest by Mississippi officers to be valid was that, unbeknownst to the Mississippi officers, the officers in Pasco actually had developed enough information about what happened in Pasco County to constitute probable cause to arrest Voorhees for murder – and under the fellow officer rule, once the Pasco officers had been in communication with Mississippi officers, the Pasco County officers’ knowledge that formed the basis for that probable cause became imputed to the Mississippi authorities:

. . . Based upon these facts known to Pasco County officers, they had probable cause to arrest Voorhees. In turn, this probable cause provided a lawful basis for Voorhees’ arrest in Mississippi and made Voorhees’ detention proper following

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the interaction between Pasco County officers and Mississippi officers. Therefore, we agree with the trial court's conclusion that Voorhees’ detention was legal beginning at the time that the Mississippi officers became aware that Voorhees and Sager were wanted for a murder in Pasco County. See generally United States v. Butler, 74 F.3d 916, 921 (9th Cir.1996) (finding that probable cause can be demonstrated through the collective knowledge of police officers involved in an investigation even if some of the information known to other officers is not communicated to the arresting officer).

Id. at 610. (Emphasis added). Accordingly, when the Supreme Court in Montes-Valeton concluded, based on its explanation of the ruling in Voorhees, that the fellow officer rule did not apply in the case before it because Sgt. Tejera had not “communicated his concerns about Montes–Valeton’s possible intoxication to Trooper Molina,” this conclusion misapprehended both the facts and the law contained in Voorhees. Specifically, as the State subsequently argued in its Motion for Rehearing to the Florida Supreme Court:

The critical problem in the discussion of Voorhees in the opinion in this case is that the opinion states that the "Mississippi officers then called the Pasco County Sheriff's Department which confirmed that Voorhees was wanted in connection with a murder." That significantly overstates what happened in Voorhees, as Pasco officers did not say that Voorhees was “wanted in connection with a murder"; rather, they merely said, as noted above, that they "were looking to talk to Voorhees and Sager later that same day.” That does not constitute an assertion that Voorhees was “wanted in connection with a murder.” Thus, when this Court holds, in the instant opinion, that Voorhees stands for the proposition that "the fellow officer rule does not allow an officer to assume probable cause for an arrest or a search and seizure from uncommunicated information known solely by other officers," the opinion in Montes-Valeton overlooks the critical fact of Voorhees – i.e., that the existence of probable cause was something that was entirely uncommunicated and which, if at all, would have been known solely to the Pasco County officers. Just as this Court concludes in the instant case that “There is no indication in the record that Sergeant Tejera communicated his concerns about Montes-Valeton’s possible intoxication to Trooper Molina or to any other law enforcement officer,” in Voorhees, there was no indication in the record that Pasco officers communicated any concerns about Voorhees’ involvement in a murder to any other law enforcement officer; it was merely an expressed desire to question Voorhees, without any facts about what the ensuing discussion would cover or what its basis was.

* * * * * The probable cause in Voorhees, like the probable cause in the case at bar, was not communicated to the Mississippi officers who detained Voorhees.

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Nevertheless, the seizure was valid based upon the Mississippi officers’ imputed knowledge of probable cause pursuant to the fellow officer rule. As such, the instant conclusion, “Consistent with Voorhees, we recognize that the fellow officer rule does not allow an officer to assume probable cause for an arrest or a search and seizure from uncommunicated information known solely by other officers” misapprehends Voorhees.

(State’s Motion for Rehearing filed March 10, 2017, at pages 3-4 and 5-6). In addition to addressing the Court’s misapprehension of Voorhees, the State’s Motion for Rehearing also pointed out that the Court’s assertion that there was no information communicated to Trooper Molina was also incorrect:

Further, the record in the instant case belies the conclusion that no information was communicated to Trooper Molina, the officer who sought the blood draw from the Appellant. Sergeant Luis Tejera smelled the odor of alcohol coming from the Appellant’s breath and determined that the Appellant was the driver of the vehicle involved in this single-vehicle accident in which the passenger was ejected and was transported from the scene in serious condition. Montes-Valeton v. State, 141 So. 3d 204, 207 (Fla. 3d DCA 2014), decision quashed sub nom. Montes–Valeton v. State, No. SC14-1672, 2017 WL 728097. Sergeant Tejera testified at the suppression hearing that then he delegated Trooper Molina. Montes–Valeton, No. SC14-1672, 2017 WL 728097, at *1. Id. Sergeant Tejera continued to “oversee[] everything.” (R. 224). Trooper Molina approached Montes–Valeton to question him about the car crash. After this initial encounter, Trooper Molina asked if Montes–Valeton would consent to a blood draw. Trooper Molina then read the implied consent warnings that came with the blood draw kit to Montes–Valeton. Thereafter, Montes–Valeton agreed to the blood draw by signing a written consent form provided by Trooper Molina that stated, “I have granted permission for blood samples to be taken.” Trooper Molina oversaw the blood draw performed by fire rescue and determined that Montes–Valeton was at fault for the traffic crash. Montes–Valeton, No. SC14-1672, 2017 WL 728097, at *1. Clearly, information was communicated. Trooper Molina did not approach the Appellant with no knowledge of the circumstances surrounding the fatal accident and the Appellant’s role. Because Trooper Molina was imputed by the additional observations and knowledge of Sergeant Tejera, the blood draw was supported by probable cause.

Id. at 6-7. Thereafter, on April 27, 2017, the Florida Supreme Court denied the State’s Motion for Rehearing. After considering the matter further, the Attorney General’s Office decided (much to the undersigned’s chagrin) not to take the matter up to the United States Supreme Court.

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As to the consent issue, that matter is not controversial and is addressed later in this Update under the category of Consent at pages 92-93.

5. Attack on HRS/FDLE rules relating to blood tests Goodman v. Florida Department of Law Enforcement, 203 So.3d 909 (Fla. 4th DCA 2016), affirmed, Goodman v. Florida Department of Law Enforcement, 238 So.3d 102 (Fla. 2018): The defendant here was charged with charged with DUI Manslaughter/Failed to Render Aid and Vehicular Homicide/Failed to Give Information or Render Aid. He moved to exclude the blood alcohol test results, challenging Florida Administrative Code Rules 11D-8.012 and 11D-8.013 and the authority of the Florida Department of Law Enforcement (“FDLE”) to promulgate these rules relating to the collection and labeling of blood for blood alcohol content testing. The trial court deferred ruling on the motion and transferred this issue to the Florida Division of Administrative Hearings, under the doctrine of primary jurisdiction. As the Fourth District Court of Appeal explained, Court explained: “The doctrine of primary jurisdiction dictates that when a party seeks to invoke the original jurisdiction of a trial court by asserting an issue which is beyond the ordinary experience of judges and juries, but within an administrative agency's special competence, the court should refrain from exercising its jurisdiction over that issue until such time as the issue has been ruled upon by the agency.” (Citing, Flo–Sun, Inc. v. Kirk, 783 So.2d 1029, 1036–37 (Fla.2001)). The defendant argued that Rule 8.012 is invalid for failure to specify a required needle size for drawing blood. Specifically, he alleged that his blood was drawn using a twenty-five gauge butterfly needle, rather than a “standard” twenty-one gauge straight needle. The administrative law judge (ALJ) heard testimony from seven expert witnesses, all of whom opined on the relative effectiveness of this deviation in needle size and type and/or the effectiveness of the current regulations’ procedures. Ultimately, the judge rejected this argument and the Fourth DCA agreed. The Court indicated that although the testimony presented at the hearing was subject to multiple conclusions on this point, there was sufficient evidence in the record to support the ALJ’s findings of fact as to the effect of clotting on the accuracy of blood testing. As to Rule 8.013, the defendant argued that this Rule improperly fails to require the screening, removal, or documentation of flawed blood samples. FDLE responded, and the Fourth District agreed, that the defendant did not establish that the Rule has failed to ensure the accuracy of the blood testing program. The Rule itself, titled “Blood Alcohol Permit—Analyst,” sets out criteria to apply for a permit to conduct blood alcohol analyses, including submission of an application providing “[a] complete description of proposed analytical procedure(s) to be used in determining blood alcohol level.” The Court added that the testimony below supported FDLE’s contention, both below and on appeal, that Rule 8.013 is not meant to be the only source of guidance for analysts, but is instead meant to supplement and reinforce sound scientific principles and laboratory practices. It also supported the ALJ’s conclusion that “analysts routinely examine and document the condition of samples as a matter of standard laboratory practice [and the] omission of such a requirement does not provide a basis to invalidate [Rule 8.013].”

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Ultimately, the Fourth District concluded that the ALJ’s findings that Rules 8.012 and 8.013 adequately protect the reliability and consistency of blood testing were supported by competent evidence in the record and therefore the Court affirmed the ALJ’s order. However, on rehearing, the Court certified the following two questions to the Florida Supreme Court:

(1) ARE THE CURRENT RULES OF THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT (FDLE) INADEQUATE UNDER STATE v. MILES, 775 So.2d 950 (Fla.2000), FOR PURPORTEDLY FAILING TO SUFFICIENTLY REGULATE PROPER BLOOD DRAW PROCEDURES, AS WELL AS THE HOMOGENIZATION PROCESS TO “CURE” A CLOTTED BLOOD SAMPLE?

(2) ARE THE PRESENT RULES SIMILARLY INADEQUATE FOR FAILING TO SPECIFICALLY REGULATE THE WORK OF ANALYSTS IN SCREENING BLOOD SAMPLES, DOCUMENTING IRREGULARITIES, AND REJECTING UNFIT SAMPLES?

The Florida Supreme Court answered both certified questions in the negative, and approved the decision of the Fourth District.

As to rule 11D-8.012, the Court found this rule was not facially inadequate for failing to prescribe requirements for needle gauge or tourniquet use, despite the claim that the use of a wrong needle or improperly applying a tourniquet could increase the chance of blood clotting that could impact accuracy and reliability of test results. As to rule 11D-8.013, the Court rejected the argument that the rule was insufficient for not specifying that analysts screen, document, and reject unfit samples. The Court found such a requirement to be unnecessary, stating: “Although it may be preferable for FDLE to promulgate a Rule that specifically lays out every minute detail of a test, this Court is not positioned to make that determination. Further, such an exercise ‘would swiftly devolve into a hopeless endeavor and serve only to expand [FDLE’s] regulations to epic lengths.’ ” (Quoting from Fourth DCA’s ruling).

8. Consent State v. Murray, 51 So.3d 593 (Fla. 5th DCA 2011): Court holds that the defendant voluntarily submitted to a blood draw and therefore, contrary to the ruling by the trial, the officers were not required to inform the defendant about the provisions of the implied consent laws. More specifically, two drivers who were allegedly street racing were involved in a crash which caused the death of another motorist and as a result, both men were charged with vehicular homicide. The investigating officers testified that neither defendant appeared to be impaired nor smelled of alcohol. Consequently, the officers concluded that they had no probable cause to arrest either for DUI or to request blood, breath or urine from them. However, the officers asked both men to voluntarily provide blood samples. The officers advised them that the blood would be tested for the presence of alcohol and drugs and that the potential for criminal charges arising from the crash existed. No implied consent warnings were given. Both men signed written consent forms, acknowledging that they had given permission for the blood draw. The trial court suppressed the blood tests, finding that despite both men’s voluntary consent to the blood draws, suppression

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was required because pursuant to Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988), they should have been informed that the implied consent law requires submission only to a breath or urine test, and that a blood test is offered only as an alternative. On appeal, the Fifth District Court of Appeal agreed with the State that the officers were not required to inform the men about the provisions of the implied consent laws. The Court did acknowledge the following passage from Chu: “[W]e see no reason to exclude a voluntary blood test provided the person has been fully informed that the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an alternative ....” However, the Court, while recognizing that Chu’s “holding likely sweeps too broadly,” distinguished Chu from the facts in its own case. The Court pointed out that unlike its own case, in Chu the officer did have probable cause to believe the defendant was DUI, and would have been authorized to administer a breath test (assuming that the officer in Chu had decided to arrest that defendant) but the officer in Chu decided to obtain a blood test instead (because paramedics were already at the scene – see, Chu, at 521 So.2d 331-332). The officer asked Chu to submit to a blood test at the scene, read the implied consent warning to her, and obtained her written consent for the blood test. (Note also that although the Fifth District didn’t mention this, the Chu Court had found it significant that Chu made “no argument that she did not voluntarily consent to the blood test or that she gave her consent because of acquiescence to lawful authority.” Id. at 332.) Thus, unlike the situation in Chu, here the request for blood was done without probable cause and sections 316.1932 and 316.1933 “are not implicated because this test was done outside the scope of the implied consent law.” 51 So.3d at 595. Rather, both men simply “voluntarily consented to the blood draw.” Id. at 596. Note also that it appears that the Fourth District Court of Appeal has now effectively receded from its dictum in Chu by adopting the reasoning of the Fifth District’s Murray case in the recent cases of State v. Myers, 261 So.3d 573 (Fla. 4th DCA Nov. 28, 2018) and DHSMV v. Davis, 264 So.3d 965 (Fla. 4th DCA Feb. 13, 2019). These cases are discussed at pages 93-94, after the discussion of the Montes-Valeton case, which is discussed next. Montes-Valeton v. State, 216 So.3d 475 (Fla. 2017): This case was thoroughly addressed under the topic of probable cause based on fellow officer rule, at pages 83-90. But the case also dealt with the alternative issue of consent. Although the author of this Update has highly criticized the Court’s ruling in the context of the fellow officer rule issue, this author has no problem with the Court’s analysis of the consent issue. That is, in this case, the trooper obtaining the blood draw admitted that he did not detect the odor of alcohol while speaking to the defendant and that he could not recall whether the defendant appeared to be under the influence of alcohol. Thus, he himself clearly had no probable cause to order a blood draw. Accordingly, assuming that the fellow officer rule could not provide the probable cause (an assumption this author does not accept), then the Court correctly applied the following analysis:

After asking Montes–Valeton to consent to a blood draw, Trooper Molina read the implied consent warnings that came with the blood draw kit to Montes–Valeton. The warnings threatened that a refusal would result in the suspension of his driver license. Trooper Molina further explained Florida's “implied consent law” to him. But because Trooper Molina lacked probable cause to require the

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blood draw under section 316.1933(1)(a), neither the implied consent warnings nor Florida's implied consent law applied to Montes–Valeton. . . . The fact that Trooper Molina improperly threatened Montes–Valeton with the suspension of his driver license for refusing to give consent to the blood draw renders his consent involuntary. See, e.g., State v. Slaney, 653 So.2d 422, 430 (Fla. 3d DCA 1995) (“[W]here, as here, a DUI arrestee consents to a blood withdrawal after being improperly advised that he will lose his driver's license if he fails to give such consent, the ensuing consent is involuntary in nature because it was induced by a misrepresentation.”); see also Cooper v. State, 277 Ga. 282, 587 S.E.2d 605, 612 (2003) (“Consequently, the trooper completely misled [the defendant], albeit unintentionally, about his implied consent rights, and any consent based upon the misrepresentation is invalid.”). Because of the coercion arising from the improper threat, Montes–Valeton's consent was involuntary.

216 So.3d at 481. (Footnote omitted). State v. Myers, 261 So.3d 573 (Fla. 4th DCA Nov. 28, 2018): In this case, the defendant was arrested for reckless driving and was taken to a hospital to treat his injuries. Based on the overall circumstances, the officer who accompanied defendant to the hospital suspected that defendant was intoxicated and immediately requested a blood test. The defendant, who was alert and compliant, voluntarily consented. Because of this voluntary consented, the officer did not say anything to the defendant about what is required under the implied consent law. The defense filed a motion to suppress the blood draw and the trial court granted the motion, finding that there was no evidence that the administration of a breath or urine test was impractical or impossible and that the officer failed to inform the defendant of Florida’s implied consent law. On appeal, the Fourth District Court of Appeal reversed. The Court acknowledged the language in section F.S. 316.1932(1)(c). The Court then explained:

The Florida Supreme Court has explained, however, that if a defendant expressly consents to a blood test, “then the blood test falls wholly outside the scope of the implied consent law.” Robertson v. State, 604 So.2d 783, 790 (Fla. 1992) (paraphrasing an analogous Iowa case and explaining that “[t]he same is true of Florida’s implied consent law”); see also State v. Murray, 51 So.3d 593, 594–95 (Fla. 5th DCA 2011) (holding that because the implied consent law did not apply, the troopers were not required to inform the defendant of the provisions of implied consent). Here, because Appellee consented to the blood test and nothing in the record indicates that his consent was involuntary, the provisions of Florida’s implied consent law did not apply. Accordingly, the trial court erred in suppressing the blood test results for failure to comply with the provisions of the implied consent law.

261 So.3d at 574-75. (Emphasis added).

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In so ruling, the Fourth District not only aligned itself with the Fifth District’s holding in Murray (Murray was discussed in this Update at pages 91-92), but also it effectively receded from its prior dictum in Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988) (where the Court had suggested that “the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an alternative ....” – prompting the Fifth District in Murray to state that Chu’s “holding likely sweeps too broadly”). Thus, it now appears that the Fourth District and the Fifth District are in sync on this issue.

DHSMV v. Davis, 264 So.3d 965 (Fla. 4th DCA Feb. 13, 2019): In this case, the Fourth District Court of Appeal reiterated that the implied consent law does not apply when a suspect voluntarily consents to a blood draw while in a hospital, citing its own prior ruling in Myers, supra. As the Court here stated: “In such a case, the impracticality of a breath or urine test is not a necessary precondition for obtaining a blood draw.” 264 So.3d at 967. Miller v. State, 250 So.3d 144 (Fla. 1st DCA May 25, 2018): The defendant in this DUI Manslaughter case initially agreed to a voluntary blood withdrawal but withdrew his consent when Officer Simmons asked for the defendant’s signature on the consent form. Simmons then explained that if the defendant refused consent, a warrant would be obtained to get the blood from him. The defendant then agreed to the blood draw and signed the consent form.

The First District Court of Appeal rejected the defendant’s argument that the blood draw was obtained involuntarily. The Court first noted that “[w]hether consent was freely and voluntarily given is determined by the totality of the circumstances,” citing Montes-Valeton, supra. The Court then stated:

The facts and circumstances in this case demonstrate that Miller freely and voluntarily consented to the blood withdrawal. Specifically, Simmons explained that refusal to consent would require him to get a warrant (for which probable cause existed) to obtain the blood sample, which he explained would require them to drive to a judge during the night to get the warrant signed. Simmons's explanation did not amount to coercion or misrepresentation of authority because he had probable cause and accurately described to Miller what would occur if a warrant were sought. Miller’s subsequent consent, both oral and written, was therefore freely and voluntarily given.

250 So.3d at 145. It appears that a key factor for the First District in Miller was that unlike what happened in Montes-Valeton, supra, the police did have sufficient evidence to demonstrate probable cause to obtain a search warrant. This factor also distinguishes Miller from the First District’s prior ruling in Smith v. State, 904 So.2d 534 (Fla. 1st DCA 2005). In Smith, officers told the defendant that he could not enter his home because they were obtaining a warrant to search his home for which they believed they had PC. But the Court in Smith found that officers did not have probable cause; thus, defendant’s agreement to allow officers into the residence in exchange for officers not to involve his girlfriend or child was not voluntary but was instead submission to a show of authority.

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Smith itself had relied in part on Bumper v. North Carolina, 391 U.S. 543 (1968). In Bumper, police arrived at defendant’s grandmother’s home and one of them announced “I have a search warrant to search your house.” It is unclear if the police did, in fact, have a warrant but the grandmother responded, “Go ahead.” During the motion to suppress hearing, the prosecutor informed the court that he did not rely on a warrant but was proceeding on the grandmother’s consent. The United States Supreme Court found that these circumstances demonstrated not voluntary consent but mere “acquiescence to a claim of lawful authority.” The Court explained:

A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

391 U.S. at 548-49. Accordingly, law enforcement officers must be careful in what they say about obtaining a search warrant when seeking consent to search, especially in blood draw cases. And obviously any consent obtained will be tainted in such circumstances if it turns out that there was no probable cause to obtain a search warrant. Fortunately, it was all good in the Miller case.

10. Standard for trial court to review motions to suppress (new topic)

Wheeler v. State, 87 So.3d 5 (Fla. 5th DCA 2012): In this DUI Manslaughter case, the defendant claimed as error on appeal the manner in which the trial court weighed the evidence presented during his pretrial suppression hearing. Specifically, during its verbal ruling, the trial court stated that the standard for reviewing the defendant's suppression motion was as follows: “The trial court must view the evidence in a light most favorable to the prosecution unless the testimony is implausible or incredible as a matter of law.” In so ruling, the trial court had quoted from the Fifth District’s prior opinion in State v. Johnson, 695 So.2d 771 (Fla. 5th DCA 1997). Recognizing that its prior language from Johnson was incorrect, the Fifth District in Wheeler reviewed the appeal en banc in order to recede from the language in Johnson. The Court instead agreed with the defendant that the correct standard was announced in Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008), i.e., that trial courts in suppression hearings must weigh the evidence based on the totality of the circumstances, without having any favoritism toward the prosecution. Nevertheless, the Court determined that the error by the trial court was waived because the record demonstrated that no objection was raised by the defendant during the suppression hearing regarding the trial court's reliance on the Johnson standard of review. 11. Availability of search warrants to obtain DUI blood draws (new topic) State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011), review granted, 70 So.3d 587 (Fla. 2011), review dismissed, 88 So.3d 111 (Fla. 2012): Defendant was arrested for DUI, informed of Implied Consent, and refused to submit to a breath test. The police went to a judge to obtain a search warrant based on the probable cause for the arrest. The affidavit sought to take the

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defendant to the hospital for the purpose of collecting property from the person of the defendant, to wit: blood samples. It was also alleged that the property was used to commit the offense of DUI. A county court judge issued the search warrant noting that the police were requesting blood samples for the purpose of obtaining property that has been used as a means to commit the crime of DUI. There was no crash and the probable cause was only for misdemeanor DUI. The blood was taken and the defendant was subsequently charged with Felony DUI based on two prior DUI convictions. The Defense moved to suppress the blood evidence and the circuit court granted the motion. The District Court looked at three issues: (1) right to privacy, (2) Implied Consent Law, and (3) the search warrant statute. As to the right to privacy issue, the Court, citing Schmerber v. California, 484 U.S. 757 (1966), found that the blood draw did not run afoul of the Fourth Amendment. As to Implied Consent, the Court used cannons of statutory construction and found nothing in Florida’s Implied Consent Statute that expressly prohibited the use of a search warrant and that if the legislature desired such, it would have said so, and that the court must give full effect to all statutory provisions. Additionally, the Court noted other examples where blood results were obtained independent of the Implied Consent Law. Thus, the Court found that a search warrant could be used to obtain the blood independent of the Implied Consent Statute. Finally, the Court reviewed the application of the statute governing the issuance of search warrants, section 933.02. The Court noted that the statute only allows the state to secure a warrant to seize “property …used to commit a misdemeanor” and “property [that] constitutes evidence relevant to proving that a felony has been committed.” The Court did find that the blood was “property” within the meaning of the statute but did not find that blood was “used as a means to commit” DUI based on the plain and ordinary meaning of those words. The Court thus held that the search warrant could not be used to obtain the blood in this misdemeanor DUI but the opinion appears to say that such would be valid for a Felony DUI. Nevertheless, the Court did uphold the use of the warrant under the Leon good faith exception in this particular misdemeanor case because it found that the officers were acting in good faith when they obtained the warrant from the judge. But now that the Court has ruled the way it did, it is doubtful that police could use the good faith exception in any future case. Based on the holding in Geiss, the state of the current law in Florida is that search warrants can be used to obtain blood where the police have probable cause to believe that a Felony DUI has been committed but not where the PC is only for a Misdemeanor DUI. Further, as a result of Geiss, unless and until the search warrant statute is amended, search warrants will also not be authorized to obtain medical blood in misdemeanor cases. That is, although many hospitals retain the blood that is drawn for medical purposes for several days and such blood would be available by search warrant in felony DUI cases, the Geiss case would preclude officers from utilizing a search warrant to obtain blood in misdemeanor DUI cases. Moreover, due to Geiss, even the medical blood records would not be available by way of search warrant in misdemeanor cases. Such medical blood records could still be available (but not the medical blood itself), but only by contacting the SAO for the purpose of obtaining the records by subpoena after notice (officers cannot request such records on their own). Finally, two United States Supreme Court cases decided after Geiss have created additional problems for obtaining blood evidence in Florida misdemeanor DUI cases. These cases are

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Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (discussed next) and the recent ruling in Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) (discussed previously in this Update at pages 75-80 and discussed further at pages 102-08). The combination of these cases has now created a definite legal impasse in one misdemeanor DUI scenario and has created a possible legal impasse in a second misdemeanor DUI scenario: The first scenario is where a DUI defendant causes serious bodily injury only to himself or herself. Although prior to McNeely, such situation would have authorized a forced blood draw under section 316.1933, today there is no legal mechanism for obtaining a forced blood draw under this scenario. This is due to the fact that, on the one hand, McNeely requires a search warrant in such situation because it involves a nonconsensual blood draw; but, on the other hand, Geiss prohibits a search warrant in such situation because it only involves a misdemeanor. (Note, however, that neither McNeely nor Birchfield would preclude an officer from seeking consent to a blood draw in such situation. And pursuant to the ruling in Birchfield, this can include advising of the implied consent warning, as long as it does not include any reference to criminal penalties – even if the defendant actually was previously suspended for refusing a blood, breath, or urine test). The second scenario is more controversial: where the DUI defendant appears for treatment at a hospital or other medical facility and is unconscious or otherwise incapable of withdrawing consent. Section 316.1932(1)(c), Florida Statutes, states that “[a]ny 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 test.” However, the Supreme Court in Birchfield, in the course of rejecting the argument that blood draws can qualify under the search-incident-to-arrest exception to the warrant requirement in blood draw cases (note that the Court did find that blood draws obtained pursuant to implied consent warnings can generally qualify under the consent exception but not if it involves a warning that a refusal would result in a separate crime), stated:

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 drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.

136 S.Ct. at 2184-2185. (Emphasis added). This passage appeared to indicate that in the unconscious defendant scenario, law enforcement cannot rely on implied consent laws to justify a blood draw in the absence of a search warrant (or exigent circumstances for not obtaining a warrant) – but see the recent case of McGraw v. State, 2018 WL 1413038 (Fla. 4th DCA March 21, 2018) in which, by a 2-1 majority, the Fourth DCA determined that notwithstanding this passage, an officer may constitutionally draw blood from an unconscious defendant in a DUI case based on section 316.1932(1)(c). The undersigned is not confident that the Fourth DCA’s ruling in McGraw will ultimately by upheld by higher courts. But for the time being, it is the law. (See further consideration of McGraw under the topic of “The impact of McNeely/Birchfield on Florida’s Implied Consent Law as applied to unconscious defendants” at pages 99-101). In the event that the Florida Supreme Court or the United States Supreme Court rules differently,

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then Geiss would present a problem because Geiss effectively prohibits a search warrant in the unconscious defendant scenario if it involves only a misdemeanor. And because the unconscious person is in no position to consent to a blood draw, it would mean that there would be no legal mechanism at all to obtain a blood draw in such situation. Of course, if probable cause existed to believe such defendant had caused serious bodily injury or death to another (or if there was PC to believe the defendant had the requisite prior DUI convictions to justify being charged with Felony DUI), then a search warrant could still be utilized to obtain the blood draw. Accordingly, in view of all these adverse consequences, there are efforts currently in progress to amend the search warrant statute so as to authorize search warrants in misdemeanor DUI cases.

12. Are search warrants required in order to obtain blood draws? (new topic) Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013): Here, the United States Supreme Court held that dissipation of alcohol in the human body, standing alone, does not establish exigent circumstances to justify nonconsensual blood testing in DUI investigations without a warrant; instead, the circumstances must be examined on a case-by-case basis. This holding appeared to effectively overrule nearly half a century of established Florida case law to the contrary. In fact, based on the subsequent cases of State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016) (discussed next) and Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) (to be addressed on this issue at pages 102-108), it is now clear that the McNeely holding did just that. Accordingly, Florida law enforcement officers now must re-think how they should obtain nonconsensual blood draws in DUI cases. Some shorthand suggestions for officers in such cases are as follows:

(1) Try to obtain consent to the blood draw first a. Try for voluntary consent – no threats, promises, coercion

i. Written consent form ii. Audio/video recording

b. Based on the correct reading of Birchfield, officers can still advise of the implied consent warning under section 316.1932(1)(c), if applicable (i.e., if the person appears for treatment at a hospital or other medical facility, etc.), in order to encourage a blood draw (this may not necessarily induce the person to submit if the person is facing a DUI Manslaughter or DUI Serious Injury charge, but if the person refuses in such cases, such refusal can still be used to show consciousness of guilt), but such warning cannot include a reference to criminal penalties even if defendant was previously suspended for refusing a blood, breath, or urine test.

(2) Attempt to obtain a search warrant (except in misdemeanor cases, because of Geiss) a. Document all efforts b. Record efforts in CAD system

(3) If a warrant cannot be obtained, document the exigent circumstances (4) Work with State Attorney’s Office on procedures and approved warrants (5) Use search warrant process to obtain medical blood or medical blood records (except in

misdemeanor cases, because of Geiss) (6) Work with State Attorney’s Office to subpoena medical records (notice and subpoena)

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State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016): In this case, the Fifth District Court of Appeal applied the McNeely case, supra, to a DUI Manslaughter setting. In Liles, the Court considered three arguments, agreed with the Defendants on two of them but agreed with the State on the final argument – and affirmed the convictions. Nevertheless, ultimately, the Court’s decision reinforced the holding of McNeely as applied to forced blood draws in Florida. And after Liles was decided, the United States Supreme Court in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (to be discussed in this Update at pages 102-08) reinforced it further. More specifically, the Court in Liles rejected the State’s first argument that the blood samples obtained from the two defendants were properly drawn on the authority found in section 316.1933(1)(a), Florida Statutes. Based on language from its prior ruling in Williams v. State, 167 So.3d 483 (Fla. 5th DCA 2015), the Court held that “statutory implied consent [is] not equivalent to Fourth Amendment consent.” (The Supreme Court in Birchfield effectively qualified this holding – see pages 102 and 106 of this Update). The Court then stated that “even if we agree with the State that Liles and Willis [the two defendants] impliedly consented to the blood draws by driving, they explicitly revoked that consent when they refused to submit to the blood draws.” 191 So.3d at 488. The Court also “decline[d] to adopt the State’s argument that McNeely does not apply in these cases and that the Schmerber rule is as broad as previously believed. Id. at 489. In this regard, the Court stated:

After McNeely, law enforcement must obtain a warrant or later show that exigent circumstances prevented them from doing so. Following McNeely, we must read section 316.1933, Florida Statutes, as a directive to law enforcement to obtain blood samples in serious and deadly crashes when probable cause exists to suggest impaired driving. To comply with McNeely, the statute must assume the blood draw will be obtained with a warrant, absent consent or proof of exigent circumstances. . . .

Id. The State’s second argument was that exigent circumstances justified the failure to obtain a search warrant. The Court rejected this argument also. Without addressing what evidence was presented on this issue, the Court found that “as both trial courts found, the State failed to present sufficient evidence that exigent circumstances existed to support the warrantless blood draws under the totality of the circumstances in either case. Indeed, the State made no effort to do so, as the blood draws were based solely on the officers’ reliance on section 316.1933(1).” Id. The good news is that because there was no discussion of the evidence – and as will be seen from the subsequent cases of Goodman v. State, 229 So.3d 366 (Fla. 4th DCA July 26, 2017) and Aguilar v. State, 2018 WL 443165 (3d DCA Jan 17, 2018) (both cases are discussed next) – Liles should not prevent the State from demonstrating exigent circumstances in other cases. As Liles itself explained in a footnote:

The Court [in McNeely] reiterated that the question of the reasonableness of a warrantless search should be answered on a case-by-case basis considering the totality of the circumstances. McNeely, 133 S.Ct. at 1563. McNeely identified certain facts that establish whether an exigent circumstance exists, including: natural dissipation of alcohol from the body, the time to seek out a magistrate to review a warrant, a DUI involving a crash

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where an investigation must be conducted, and the availability of electronic or telephonic warrants. Id. at 1560–62.

Id. at 487, n. 2. The final argument presented by the State was that the good faith exception to the exclusionary rule justified the warrantless blood draw. This argument was accepted by the Court. Specifically, the Court recognized that both offenses in the two cases occurred before McNeely had been decided; therefore the officers, in good faith, had relied on section 316.1933. As the Court explained:

[B]efore McNeely, it was reasonable for the officers to have a good-faith belief in the constitutional validity of a warrantless blood draw authorized by section 316.1933(1)(a). See, e.g., State v. Bender, 382 So.2d 697, 698 (Fla.1980) (“There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established.”); State v. McInnis, 581 So.2d 1370, 1373 (Fla. 5th DCA 1991) (recognizing no constitutional right not to have blood drawn for testing by brute force and against suspect’s will); see also State v. Langsford, 816 So.2d 136, 138–39 (Fla. 4th DCA 2002) (holding forcible blood extraction from defendant does not violate Fourth Amendment when defendant is under arrest for DUI provided there is probable cause to arrest defendant for DUI, and blood is extracted in reasonable manner by medical personnel, pursuant to medically-approved procedures). Exclusion of the blood in these two cases would have no deterrent effect on future police misconduct. . . .

Id. at 489. Unfortunately, since it has been over six years since McNeely was decided, there are very few cases remaining in which the good faith exception can save a blood draw that was administered without either consent, a warrant, or exigent circumstances. And it appears that any possible hope that Liles misread McNeely with regard to the implied consent theory in the context of forced blood draws (as applies in DUI Manslaughter situations) has now been effectively foreclosed by the Birchfield case, which is discussed at pages 102-08. Goodman v. State, 229 So.3d 366 (Fla. 4th DCA 2017) and Aguilar v. State, 239 So.3d 108 (3d DCA 2018): Goodman is the first Florida appellate case to provide an analysis of the exigent circumstances exception to the search warrant requirement since the ruling in Missouri v. McNeely. And Aguilar follows closely on its heels, utilizing the same reasoning and reaching the same result. In Goodman, the defendant was involved in a two-vehicle crash in which the other driver died after his vehicle was submerged in a canal. The defendant left the scene of the crash for over an hour and then returned, but went to the hospital for treatment of his own injuries before the investigators found the vehicle and body. By the time the homicide investigator arrived and then went to the hospital, nearly four hours had elapsed since the time of the crash, but less than two

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hours from the time the body was discovered. The investigator testified that it would have taken an additional two hours to obtain a search warrant. The trial court determined that based upon the timeline, exigent circumstances were present; the Fourth District Court of Appeal agreed. The Court initially pointed out that unlike McNeely, this was not a “routine DUI” once the victim’s body was discovered. The Court noted that in Schmerber v. California, 384 U.S. 757 (1966) (the case that McNeely relied on), the USSC had found that in addition to the natural dissipation of blood alcohol as a factor in determining exigent circumstances, “time had to be taken to bring the accused to a hospital and to investigate the scene of the accident,” and thus “there was no time to seek out a magistrate and secure a warrant.” The Court then stated: “If the circumstances in Schmerber constituted exigent circumstances to justify a warrantless blood draw, then the circumstances of this case present a far more compelling reason to obtain a blood draw as soon as possible so as to prevent the dissipation of alcohol in appellant's system. We thus find no Fourth Amendment violation.” 229 So.3d at 381. Based on Goodman, it is evident that the closer a case is to the facts of Schmerber than to the facts of McNeely, the more likely that exigent circumstances will be found. In fact, this was the exact rationale utilized by the Third District Court of Appeal in Aguilar in upholding the blood draw in that case. In Aguilar, the Court noted the following circumstances:

• Defendant caused a multi-vehicle accident that resulted in the instantaneous death of one person and caused serious bodily injury to two others;

• accident occurred at scene of prior accident, further complicating accident scene investigation;

• Defendant himself was seriously injured, taken to hospital for treatment, and induced into coma and intubated;

• at both the accident scene and later at the hospital, defendant smelled of alcohol and exhibited symptoms consistent with drunkenness;

• the blood sample was taken about ninety minutes after the accident;

• the testimony provided by the State was that a warrant would have taken at least four hours to obtain from the time the process began.

The Court in Aguilar cited to the ruling in Goodman and stated: “Factually, the instant case is akin to Schmerber and not to McNeely.” 239 So.3d at 112. Based on the “totality of the circumstances,” the Court found no Fourth Amendment violation. The Court also distinguished Liles, 191 So.3d 484 (Fla. 5th DCA 2016) which had found no exigent circumstances, stating: “[T]he Fifth District [in Liles] did so not on any legal ground relevant here, but because the State had failed to present sufficient evidence to the trial court that exigent circumstances existed even though it had the burden of doing so. . . . In the instant case, by contrast, the State met its evidentiary burden regarding the existence of exigent circumstances.” Id. at n.4.

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Goodman and Aguilar serve to demonstrate what the undersigned author had anticipated based on previous cases addressing “exigency:” that in crash cases involving a death or serious injury – given the severity of the crime and the time it takes to conduct the investigation – the Courts are much more likely to find exigent circumstances than in ordinary crash cases. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 740-41 (1984) (“an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made”); State v. Rodriguez, 156 P.3d 771, 781 (Utah 2007) (“One fact dominates all others with respect to its relevance to whether the warrantless blood draw was reasonable: that [the victim] was expected to succumb to her injuries. The severity of the possible alcohol-related offense bears directly on the presence or absence of an exigency sufficient to justify a blood draw without a warrant.”). (Emphasis added).

Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016): This case was previously addressed under the topic “Are search warrants required in breath test cases?” at pages 75-80. As explained therein, the United States Supreme Court in this case considered the issue of whether search warrants are required both in the context of breath tests and in the context of blood tests. As previously explained, the Court held that a statute criminalizing the refusal of a warrantless breath test does not violate the Fourth Amendment because the Fourth Amendment permits warrantless breath tests incident to arrests for DUI. However, as will be shown in this section, the Court also held that in the absence of a warrant or exigent circumstances, a statute criminalizing the refusal of a warrantless blood test does violate the Fourth Amendment. As will also be shown herein, Birchfield held that unlike warrantless breath tests, warrantless blood tests cannot be justified under the search-incident-to-arrest theory. The Court also specifically rejected application of the implied consent theory to the criminalization of a refusal to submit to a blood test. This holding also appeared to reinforce the conclusion in the Liles case (discussed above) that a forced blood draw administered pursuant to section 316.1933, Florida Statutes, will survive Fourth Amendment scrutiny in the absence of consent only where the police obtain a search warrant or demonstrate proof of exigent circumstances for not obtaining the warrant. However, the Court in Birchfield did not invalidate implied consent laws pertaining to warrantless blood testing, as some have suggested. In fact, as will be explained herein, the Court appeared to treat “implied” consent in blood draw cases as generally falling within the consent exception to the warrant requirement – but not where that consent is based on a defendant being threatened with criminal prosecution for refusing the blood draw. This also means that the Fourth Amendment would not prohibit a defendant’s refusal to submit to a blood draw after being advised of implied consent from being admissible at trial (assuming there was no threat of being charged with a crime) – or from giving rise to a driver’s license suspension. Accordingly, the statement in Liles that “statutory implied consent [is] not equivalent to Fourth Amendment consent” needs to be qualified: that is, it appears that statutory implied consent to a blood draw does constitute Fourth Amendment consent – so long as there is no threat of force or threat of being charged with a crime.

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As previously explained, the issues in Birchfield arose in three different cases, with three different factual scenarios, all involving criminal refusal to submit statutes. Petitioners Birchfield and Bernard each refused to undergo a chemical test for alcohol and each was prosecuted for the crime of refusal to submit, but Birchfield’s crime was refusing a breath test and Bernard’s crime was refusing a blood test. Each of these petitioners argued that the Fourth Amendment prohibited criminalizing the refusal to submit to a warrantless test. Petitioner Beylund did not refuse at all – rather, he consented to providing a blood sample – but his driver’s license was then suspended in an administrative proceeding based on test results that revealed a very high blood alcohol level. Beylund’s argument was that his consent to the blood test was coerced by the officer’s warning that refusing to consent would itself be a crime. All of these arguments were rejected by the state supreme courts. The United States Supreme Court granted certiorari in all three cases and consolidated them for argument “in order to decide 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.” 136 S.Ct. at 2172. As also previously explained, the Court in Birchfield addressed the issue for both blood tests in the context of the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement. And recall from the previous discussion that the Court stated:

Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell phones, but here, as in Riley [v. California, 134 S.Ct. 2473 (2014)], the founding era does not provide any definitive guidance as to whether they should be allowed incident to arrest. Lacking such guidance, we engage in the same mode of analysis as in Riley : we examine “the degree to which [they] intrud[e] upon an individual’s privacy and ... the degree to which [they are] needed for the promotion of legitimate governmental interests.’ ” Ibid.

Id. at 2176. After applying this “mode of analysis” to the breath test scenario and finding the physical intrusion from breath tests to be almost negligible, the Court had a different take on blood tests:

Blood tests are a different matter. They “require piercing the skin” and extract a part of the subject's body. Skinner, supra, at 625; see also McNeely, 569 U.S., at –––– (opinion of the Court) (slip op., at 4) (blood draws are “a compelled physical intrusion beneath [the defendant's] skin and into his veins”); id., at –––– (opinion of ROBERTS, C.J.) (slip op., at 9) (blood draws are “significant bodily intrusions”). And while humans exhale air from their lungs many times per minute, humans do not continually shed blood. It is true, of course, that people voluntarily submit to the taking of blood samples as part of a physical examination, and the process involves little pain or risk. See id., at –––– (plurality opinion) (slip op., at 16) (citing Schmerber, 384 U.S., at 771). Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than blowing into a tube. Perhaps that is why many States’ implied consent laws, including Minnesota's, specifically prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests or give motorists a measure of choice over which test to take. See 1 Erwin § 4.06; Minn.Stat. § 169A.51, subd. 3.

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In addition, a blood test, unlike a breath 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. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.

Id. at 2178. As previously explained, the Court then addressed the “paramount interest” that the States and the Federal Government have in preserving the safety of public highways, the legitimate interest in getting drunk drivers off the road, and the very important function that criminal refusal statutes serve “to provide an incentive to cooperate in such cases.” (See page 71 of this Outline). Ultimately, the Court applied its balancing mode of analysis to the search-incident-to-arrest issue to the two sets of tests thusly:

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude 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. We reach a different conclusion with respect to blood tests. Blood 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. at 2184. The Court added:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation [i.e., the breath test situation].

Id., at 2185. Thereafter, the Court rejected the alternative argument, in the context of the blood test scenario, that the implied consent statute can constitute “consent” for purposes of the consent exception to the warrant requirement – but, as will be explained further below, this rejection was limited to the circumstances where the implied consent warning refers to criminal penalties for refusing to submit to a blood test:

Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’ alternative argument

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that such tests are justified based on the driver’s legally implied consent to submit to them. It is well established that a search is reasonable when the subject consents, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and that sometimes consent to a search need not be express but may be fairly inferred from context, cf. Florida v. Jardines, 569 U.S. 1, ––––-–––– (2013) (slip op., at 6–7); Marshall v. Barlow’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at –––– (plurality opinion) (slip op., at 18); Neville, supra, at 560. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them. It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. Respondents and their amici all but concede this point. North Dakota emphasizes that its law makes refusal a misdemeanor and suggests that laws punishing refusal more severely would present a different issue. Brief for Respondent in No. 14–1468, at 33–34. Borrowing from our Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to have consented to only those conditions that are “reasonable” in that they have a “nexus” to the privilege of driving and entail penalties that are proportional to severity of the violation. Brief for United States as Amicus Curiae 21–27. But in the Fourth Amendment setting, this standard does not differ in substance from the one that we apply, since reasonableness is always the touchstone of Fourth Amendment analysis, see Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

Id. at 2185-2186. (Emphasis added). The Court later applied its holdings as to the search-incident-to-arrest and implied consent arguments to Petitioner Birchfield as follows:

Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State’s interests in acquiring evidence to enforce its drunk-driving laws against Birchfield. And North Dakota has not presented any case-specific information to suggest that the exigent circumstances exception would have justified a warrantless search. Cf. McNeely, 569 U.S., at –––– – ––––, 133 S.Ct., at 1567. Unable to see any other basis on which to justify a warrantless test of Birchfield’s blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.

Id. at 2186. (Emphasis added).

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Given these statements in Birchfield, it would appear to be impossible to constitutionally apply the criminal refusal statute in Florida (section 316.1939) to a blood draw in a misdemeanor setting; however, the statute would appear to still be applicable to blood draws in a felony DUI setting. This is because of the reasoning in State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011) (discussed at pages 95-99 of this outline). That is, Geiss had interpreted Florida’s search warrant statute so as to preclude the authorization of a search warrant in misdemeanor DUI cases, but not in felony DUI cases. Thus, in cases where there is probable cause to believe the defendant has two prior DUI convictions, one of which was within the last 10 years prior to the instant offense (or where there is PC to believe the defendant has three prior DUI convictions regardless of timing), or where there is probable cause to believe the defendant has caused the death or serious bodily injury of another, and the police do obtain a search warrant – or they are able to demonstrate exigent circumstances for not obtaining one, Birchfield should not prevent the application of section 316.1939 if the defendant refuses to submit to the blood draw. In any event, the passage quoted above regarding the continued vitality of implied consent statutes should make it clear that the Supreme Court was treating implied consent in blood draw cases as generally falling within the consent exception to the warrant requirement but not where that consent is based on “pain of committing a criminal offense” for refusing such test – i.e., where the defendant is threatened with criminal prosecution for refusing. This passage would also appear to foreclose the argument that “forced blood draw” implied consent statutes (such as Florida’s section 316.1933) could qualify as “consent” for purposes of the consent exception to the warrant requirement. That is, we now know that there is “a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” And we know that criminally prosecuting the motorist for refusing a blood draw crosses that limit. Therefore, it is highly unlikely that a motorist will be “deemed to have consented to submit to a blood test on pain of” being threatened with having the blood draw taken by force. Accordingly, this passage would appear to confirm the ruling made by the Fifth District Court of Appeal in Liles, supra, but some of Liles’ language is overstated. Specifically, Birchfield appears to reinforce Liles’ announcement that “[t]o comply with McNeely, the statute [i.e., section 316.1933] must assume the blood draw will be obtained with a warrant, absent consent or proof of exigent circumstances.” 191 So.3d at 489. However, on the matter of “consent,” Liles’ statement that “statutory implied consent [is] not equivalent to Fourth Amendment consent” (id., at 487) needs to be qualified. This is because, as discussed above, the above-quoted passage from Birchfield appears to treat “implied consent” as generally falling within the consent exception to the warrant requirement – so long as “the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads” do not exceed the Supreme Court’s “limit.” Therefore, it appears that statutory implied consent to a blood draw does constitute Fourth Amendment consent – as long as there is no threat of force or threat of being charged with a crime. This conclusion may also be inferred, although not quite as clearly, from the Court’s discussion regarding Petitioner Beylund. That is, the Court stated the following as to Mr. Beylund:

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Unlike the other petitioners, Beylund was not prosecuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be “determined from the totality of all the circumstances,” Schneckloth, supra, at 227, we leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.

Id. (Emphasis added). Regarding the “partial inaccuracy of the officer’s advisory,” this passage by itself is somewhat ambiguous because the Court here referred only to the fact the police “told him that the law required his submission.” Nevertheless, the Opinion as a whole was concerned with criminalizing refusals to submit. And earlier in the Opinion, the Court had indicated that Beylund’s argument in the lower courts was that “his consent to the blood test was coerced by the officer’s warning that refusing to consent would itself be a crime.” Id., at 2172. So the logical inference to draw from the above passage, when construed in conjunction with the remainder of the Opinion, is that the “partial inaccuracy” referred to the officer’s statement to Beylund that refusing to submit to the blood draw would constitute a crime – and that otherwise, the officer’s advisory was correct. Thus, had Beylund refused a blood draw without the inaccurate advisory that a refusal would constitute a crime, it appears that the refusal suspension would have been valid. One caveat to the conclusion about implied consent generally qualifying as consent concerns the unconscious defendant scenario. At one point in the Opinion, the Court in Birchfield said this:

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 drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.

Id. at 2185. (Emphasis added). This passage, at the time, appeared to indicate that in the unconscious defendant scenario (or where the defendant is unable to submit to a breath test due to “profound intoxication or injuries”), law enforcement cannot rely on implied consent laws to justify a blood draw in the absence of a search warrant (or exigent circumstances for not obtaining a warrant). Nevertheless, in the recent case of McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018), the Fourth DCA determined by a 2-1 majority that notwithstanding this passage, an officer may constitutionally draw blood from an unconscious defendant in a DUI case based on section 316.1932(1)(c). The undersigned is not confident that the Fourth DCA’s ruling in McGraw will ultimately by upheld by higher courts. But for the time being, it is the law. (See further consideration of McGraw under the topic of “The impact of McNeely/Birchfield on Florida’s Implied Consent Law as applied to unconscious defendants” at pages 109-111). In the event that the Florida Supreme Court or the United States Supreme Court rules differently, then the previous case of State v. Geiss, 70 So.3d 642 (Fla. 5th DCA 2011) (discussed earlier in this Update at pages 95-99) would present a problem because Geiss effectively prohibits a search warrant in the unconscious defendant scenario if it involves only a misdemeanor. And because

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the unconscious person is in no position to consent to a blood draw, it would mean that there would be no legal mechanism at all to obtain a blood draw in such situation. Of course, if probable cause existed to believe such defendant had caused serious bodily injury or death to another (or if there was PC to believe the defendant had the requisite prior DUI convictions to justify being charged with Felony DUI), then a search warrant could still be utilized to obtain the blood draw. Note also that in a footnote to the passage quoted above concerning the remand to reevaluate Beylund’s consent, the Court in Birchfield stated this:

If the court on remand finds that Beylund did not voluntarily consent, it will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, see Heien v. North Carolina, 574 U.S. ––––, ––– – ––––, 135 S.Ct. 530, 537–539, 190 L.Ed.2d 475 (2014), and the evidence is offered in an administrative rather than criminal proceeding, see Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363–364, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). And as Beylund notes, remedies may be available to him under state law. See Brief for Petitioner in No. 14–1507, pp. 13–14.

Id. at 2186, n.9. Based on this footnote, in cases in which the offense date pre-dates the Birchfield opinion, even where the implied consent warning included a reference to criminal sanctions, prosecutors can raise a “reasonable mistake of law” argument as contemplated in Heien, or perhaps it would better phrased as a “good faith exception” argument, as was utilized in Liles (where the facts pre-dated the McNeely opinion). Such arguments could make the blood test results admissible even though the criminal sanctions warning has now been determined to be unauthorized. And such arguments would appear to be equally valid as applied to the unconscious defendant scenario. Two final thoughts: First, even in cases where law enforcement was not aware of McNeely or Liles – and thus failed to even consider seeking a search warrant before obtaining a non-consensual blood draw, it is still possible for the State to successfully argue that exigent circumstances applied notwithstanding this failure. For example, such an event occurred in State v. Rodriguez, 156 P.3d 771 (Utah 2007). Rodriguez pre-dated McNeely but contrary to Florida’s appellate courts, the Utah Supreme Court in that case interpreted Schmerber as rejecting the idea that the dissipation of alcohol alone constitutes per se exigency. Nevertheless, the Court specifically ruled that the officer’s failure to even consider getting a warrant did not preclude a finding that the warrantless seizure of the blood was justified. As the Court explained: “Although we are concerned that the officers did not consider the warrant requirement, the subjective assessment about the need for a warrant is largely irrelevant to our totality of the circumstances analysis. It is an objective analysis in which the thought processes of any particular officer plays no role.” 156 P.3d at 781. The Court went on to find that “the State did meet its obligation in this case to show that under the totality of the circumstances, both probable cause and exigent circumstances justified its warrantless blood draw.” Id. at 782.

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Second, Kris Davenport, the Assistant Attorney General who handled the Liles case (as well as the Williams case) recommends that in any warrantless non-consensual blood draw case where the facts of the case pre-dated Liles, we should consider arguing that the good faith exception to the warrant requirement could apply to excuse the failure to obtain the warrant. That is, an argument can be made that before Liles ruled the way it did on the applicability of section 316.1933, officers could have reasonably relied on it as justification for a forced blood draw under that statute. Although I am skeptical of this argument, it is certainly true that some circuit judges had ruled that a warrantless forced blood draw under section 316.1933 was still viable even after McNeely.

13. The impact of McNeely/Birchfield on Florida’s Implied Consent Law as applied to unconscious defendants

McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018): The unconscious DUI defendant issue addressed in this case arose out of a combination of the case of Missouri v. McNeely 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (discussed at page 98 of this Update) and the case just discussed of Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). Recall that McNeely dealt with the issue of exigent circumstances and whether a search warrant is required to draw blood in DUI cases. But in McNeely the blood was not drawn pursuant to implied consent laws and the opinion did not address the validity of such laws. Birchfield subsequently did address the validity of implied consent laws to a certain extent in evaluating the constitutionality of criminal refusal to submit statutes. Recall also that in Birchfield, the United States Supreme Court found, based on the more intrusive nature of a blood draw, that a criminal refusal to submit to a breath test falls under the search incident to arrest exception to the warrant requirement, but this exception does not apply to blood tests. The Supreme Court further found that implied consent laws could not constitutionally authorize a blood draw that was obtained “on pain of committing a criminal offense.” 136 S.Ct. at 2186. However, the following passage in Birchfield demonstrates that Court appeared to treat an implied consent warning regarding a license suspension as constituting valid consent to a blood draw – so long as such warning does not threaten a crime for refusing: “Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. . . . Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.” Id. at 2185. In any event, the Court in Birchfield made the following comment in a footnote regarding an unconscious DUI defendant:

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 drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.”

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Id. at 2184-2185. (Emphasis added). Although this comment was made in dictum, it seemed to provide some insight into the Court’s thought process regarding the unconscious DUI defendant. At some point, the issue of whether blood could be drawn from an unconscious DUI defendant in Florida was due to arise. This is because under Florida’s implied consent statute, a person who “appears for treatment at a hospital, clinic, or other medical facility” and “is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or consent” to a blood draw. Section 316.1932(1)(c), Florida Statutes. Thus, the issue for consideration in McGraw was whether this provision is still valid after Birchfield. Notwithstanding the comment in the footnote quoted above from Birchfield, a majority of the Fourth District in McGraw, in answering a certified question from a county court judge, held that an officer may constitutionally draw blood from an unconscious defendant in a DUI case based on the language in section 316.1932(1)(c). Judge Gross issued a concurring/dissenting opinion which agreed with the county court judge who had issued the certified question that the statute was unconstitutional as to the unconscious defendant – but Judge Gross concluded that the good faith exception/mistake of law doctrine allowed the blood draw anyway. The majority also agreed that the good faith exception would have applied if it had been required to decide that issue.

On the overall issue, the majority seemed to disregard the significance of the Birchfield footnote, stating:

On first read, this statement appears to support Judge Gross’s conclusion that Florida’s implied consent law is unconstitutional as it applies to unconscious drivers. But Birchfield actually reaffirmed the constitutionality of implied consent laws, stating its ‘prior opinions have referred approvingly to the general concept of implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.’ Despite other conclusions in the opinion, the Court specifically stated that ‘nothing we say here should be read to cast doubt on them.’

245 So.3d at 766. Judge Gross's concurring/dissenting opinion emphasized the footnote from Birchfield and took the position that “Fourth Amendment consent is the product of a conscious mind. . . . Only a conscious defendant may voluntarily consent to a blood draw consistent with the Fourth Amendment.” Id. at 774, 775. Judge Gross’s view may well be the one accepted at the higher court levels; but at least for now, the majority’s view prevails in Florida. That view might not last long, however: On May 16, 2018, on motion by the Defendant, the Court certified to the Florida Supreme Court the same question certified by the county court to the Fourth DCA. The McGraw ruling makes for some interesting strategic choices for prosecutors and law enforcement officers as a result of the previous ruling in State v. Geiss, 70 So.3d 642 (5th DCA 2011). In Geiss, the Fifth DCA had held, based on the peculiar language in Florida’s search

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warrant statute, that police are not authorized to obtain a search warrant for blood from a DUI suspect in a misdemeanor case, but police may obtain such warrant in felony DUI cases. Since the ruling in McGraw clearly applies to either misdemeanor or felony scenarios, then there appears to be no downside to applying the majority’s holding to misdemeanor cases – because the search warrant method is unavailable in such cases as a result of Geiss case anyway so there would otherwise be no lawful mechanism to obtain the blood. In other words, in misdemeanor cases, there appears to be nothing to lose if police follow the majority opinion in McGraw and make the decision to draw blood from an unconscious defendant. The worst that would happen is that the blood results would be inadmissible – but this is effectively the same result that would occur if no blood draw were attempted in the first place. Moreover, given how the majority ruled on the issue – and considering what both the majority and concurring/dissenting opinions stated about the good faith exception/reasonable mistake of law doctrine – there is a possible argument that the good faith exception/reasonable mistake of law doctrine would apply even if the higher courts eventually overrule McGraw. On the other hand, a search warrant is available in felony cases. Thus, in the event that the higher courts ultimately reject the majority’s ruling in McGraw, there would be something to lose in felony cases if law enforcement officers fail to use the search warrant method when obtaining blood from an unconscious defendant (although, again, there is a possible argument that the good faith exception/reasonable mistake of law doctrine would apply even if the higher courts eventually overrule McGraw). Therefore, given this uncertainty, law enforcement officers in felony cases should play it safe when dealing with an unconscious DUI defendant – i.e., they should obtain a search warrant (or demonstrate exigent circumstances for not obtaining one) in order to ensure that the blood results will be admissible in such cases.

14. Standard of review for appellate courts on appeal of suppression rulings or on certiorari review of DHSMV administrative hearings (new topic)

Malone v. State, 195 So.3d 1184 (Fla. 2d DCA 2016): Here, the Second DCA determined that the circuit court applied an improper standard of review in reversing the county court’s suppression order. Specifically, the Court stated:

. . . The circuit court went beyond determining whether the video on which the county court relied presented competent, substantial evidence to support the county court’s conclusions. Despite acknowledging that the county court rejected at least part of the officer’s testimony, the circuit court concluded that the officer’s testimony regarding Malone’s demeanor and field sobriety test results established probable cause notwithstanding what was readily observable on the video. Thus, the circuit court improperly reweighed the evidence and chose to rely on the officer’s testimony despite the fact that the county court declined to do so. The county court was free to rely on its credibility determination to ignore or place less emphasis on the officer’s testimony and was not required to give equal weight to the officer’s testimony and the video. See Sunby, 845 So.2d [1006 (Fla. 5th DCA 2003)] at 1007.

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195 So.3d at 486-487.

Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 209 So.3d 1165 (Fla. 2017): In this case, The Florida Supreme Court answered a certified question by holding that on first tier certiorari review of a section 322.2615 administrative hearing ruling, “a circuit court must review and consider video evidence of the events which are of record as part of its competent, substantial evidence analysis. Further, we hold in this limited context that evidence which is totally contradicted and totally negated and refuted by video evidence of record, is not competent, substantial evidence.” The ruling sounds simple but the case resulted in a vigorous split decision. The majority and dissenting opinions clashed on the appropriate standard of review applicable in first and second tier certiorari review and also vehemently disagreed on what the video actually showed.

The majority opinion’s explanation of the police officer’s report and hearing testimony relating to the driving pattern was as follows:

According to the oral testimony of the officer based on his report, on the night of the stop, there was no surrounding traffic. Upon his first observation of Wiggins’ truck, Officer Saunders wrote in the arrest report that the vehicle “appeared to swerve from one lane to another.” Both Saunders and Wiggins were driving in the same direction, but Wiggins drove in the right lane while Saunders followed in the left lane. Saunders further reported that Wiggins drifted within his lane, traveled thirty miles per hour in a forty-five mile per hour zone, and crossed over the outside lane line—nearly striking a right-side curb before swerving back into his lane. Saunders stated that, as they approached an intersection, Wiggins “braked hard for no apparent reason and then accelerated back to about 30 miles per hour,” continued to drift over the line, and nearly hit the curb again. As he entered another intersection, Wiggins reportedly “braked hard again and swerved right” and almost hit the curb. Wiggins then “made a quick lane change into the left lane in front of [Saunders]” and tapped his brakes. The report further states that as they approached another traffic light, Wiggins passed the opening for a left turn lane and then slowly drifted over the line to enter the lane. Wiggins then “made a very wide left turn and had to realign his truck as he straightened out.” Believing Wiggins to be impaired, Saunders activated his emergency lights. Wiggins reportedly continued in a straight path and made a sharp right turn into a drug store parking lot. Wiggins then drove through the marked parking spaces and stopped, partially obstructing the travel lane.

209 So.3d at 1167-1168.

Based upon the testimony and evidentiary record that included the video, the DHSMV hearing officer made the following findings of fact:

On August 19, 2011, at approximately 2:10 a.m. Deputy J.C. Saunders of the Clay County Sheriff’s Office observed a vehicle swerving within the lane,

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almost striking the right side curb on several occasions, and then braking erratically for no apparent reason. He also paced the vehicle and determined that it was traveling 30 MPH in a 45–MPH zone. Suspecting that the driver might be impaired, Deputy Saunders conducted a traffic stop.

Id. at 1177 (as reported in the dissenting opinion). As a result, the hearing officer concluded that the stop was lawful because Deputy Saunders had a reasonable suspicion that Wiggins was driving while impaired. Id.

On first tier certiorari review, the circuit court reversed. This ruling was explained in the Supreme Court’s majority opinion as follows:

Here, the court concluded that the video evidence refuted both the arrest report and Saunders’ testimony. Specifically, the court found that the vehicle in the video did not swerve within its lane, did not cross over the lane line, did not nearly strike the curb, nor did it brake for no reason. Furthermore, the court determined that the video depicted Wiggins intentionally changing lanes into the turn lane with proper signals and thereafter making a normal left hand turn, as opposed to making a wide turn. Based on these clearly revealed contradictions, the circuit court concluded that the arrest report and Saunders’ testimony based on that incorrect report failed to constitute competent, substantial evidence. Thus, the circuit court held it was unreasonable as a matter of law for the hearing officer to accept the report and the testimony as true despite the objective and neutral images of the real-time video evidence of the event.

Id. at 1169. (Emphasis by the Supreme Court).

On second tier certiorari review, the First District Court of Appeal reversed the circuit court’s ruling. The First District explained its reason for reversing as follows:

The circuit court—in reaching its ultimate legal judgment—focused exclusively on the video, which both Wiggins and the court deemed to be “evidence contrary to the agency’s decision.” That was error. The sole starting (and ending) point is a search of the record for competent substantial evidence supporting the decision. The proper approach is narrow here, focusing on whether the officer’s testimony, the arresting/booking report, or the video—or portions thereof—support the hearing officer’s factual findings. See City of Jacksonville Beach v. Car Spa, Inc., 772 So.2d 630, 631–32 (Fla. 1st DCA 2000) (“[I]t is clear that ... rather than reviewing the entire record to determine whether the Planning Commission's decision was supported by competent substantial evidence, the circuit court considered only portions of the record, and reweighed the evidence, substituting its judgment for that of the Planning Commission as to the relative weight of that evidence.”). The existence of inconsistencies or contradictions in the overall evidentiary record does not negate a hearing officer's findings; an evidentiary

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record need not have one-sided purity to prevail. Id. Besides that, putting contrary evidence on the judicial scales is “outside the scope of the inquiry” at the circuit court level and amounts to a pros/cons approach that Dusseau [v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1275–76 (Fla.2001)] prohibits. Within its analysis, the trial court tacitly conducted the type of review envisioned by Dusseau because it explicitly said that “[s]tanding alone, the arrest and booking report and the testimony by Deputy Sander would support the findings of the hearing officer.” Its inquiry at that point—as explained in Dusseau—was thereby “ended.” 794 So.2d at 1276. Whatever misgivings it may have had about possible conflicts between the video and the officer's testimony/report were “outside the scope of the inquiry” as Dusseau holds. If portions of the report, or portions of the officer’s testimony, or portions of the video, or some combination of the three, provided evidentiary support for the hearing officer’s findings, judicial labor was at its end.

Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 151 So.3d 457, 464-465 (Fla. 1st DCA 2014). The First District also certified the following question of great public importance for the Supreme Court’s review:

WHETHER A CIRCUIT COURT FAILS TO APPLY THE CORRECT LAW BY REJECTING AS NON–CREDIBLE THE ENTIRETY OF AN ARRESTING OFFICER’S TESTIMONY AND REPORT CONCERNING A TRAFFIC STOP, UPON WHICH THE HEARING OFFICER’S FACTUAL FINDINGS RELIED, BASED SOLELY ON THE CIRCUIT COURT’S OWN INDEPENDENT REVIEW AND ASSESSMENT OF EVENTS ON THE VIDEO OF A TRAFFIC STOP?

Id at 471. The Florida Supreme Court rephrased the certified question as follows:

WHETHER A CIRCUIT COURT CONDUCTING FIRST–TIER CERTIORARI REVIEW UNDER SECTION 322.2615, FLORIDA STATUTES, APPLIES THE CORRECT LAW BY REJECTING OFFICER TESTIMONY AS COMPETENT, SUBSTANTIAL EVIDENCE WHEN THAT TESTIMONY IS CONTRARY TO VIDEO EVIDENCE.

209 So.3d at 1166. Of course, the rephrasing of the question alone acted as a foreshadowing of how the Supreme Court would rule. After providing the facts and procedural history of the case, the Supreme Court majority opinion presented its own depiction of the “actual video.” Before describing its depiction, the Court noted that a copy of the actual video was embedded into its

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opinion, and, in a footnote, invited the reader to access the video at https://efactssc public.flcourts.org/CaseDocuments/2014/2195/DashVideo.wmv. Id. at 1168, n.1. The Court then described the video as follows:

The dashboard camera on Saunders’ vehicle recorded Wiggins’ driving pattern from the time Saunders first saw the vehicle to the time Wiggins was stopped. As Saunders trailed Wiggins’ vehicle that night, the video showed Wiggins driving totally within the proper lines. Wiggins did not cross any lines, nor did he nearly hit the curb. Wiggins did change lanes only once in an apparent attempt to clear the lane for Saunders, but he utilized his turn signal before doing so. Wiggins then activated his turn signal to move into a left turn lane, braked in preparation to turn at a traffic light, and made a normal left turn once the traffic light turned green. As Wiggins turned left, Saunders activated his emergency lights. Upon activation of the police emergency lights, Wiggins made a normal right turn into an empty drug store parking lot. The area was dark and Wiggins came to a stop and parked in front of the building. Saunders subsequently exited his vehicle and approached Wiggins’ vehicle with another officer.

Id. at 1168-1169. The dissent saw the video much differently, stating:

What Deputy Saunders described in his narration can be seen on the video. Wiggins was not driving within the proper lines but was repeatedly driving on or over the fog line, nearly hit the curb on multiple occasions, and was drifting within his lane. The video shows that Deputy Saunders observed this driving pattern for several minutes before initiating a traffic stop. The video also clearly shows that just prior to the initiation of the traffic stop, Wiggins passed an opening for a left-turn lane and then slowly drifted over a solid white line into the turn lane before turning left. Additionally, Deputy Saunders testified and wrote in his report that Wiggins was driving 30 mph in a 45–mph zone and that these observations occurred at approximately 2:10 a.m. Under the totality of the circumstances, Deputy Saunders had a well-founded suspicion that Wiggins was impaired—as the hearing officer concluded—and the video, report, and testimony provide competent, substantial evidence to support this conclusion.

Id. at 1178. The majority opinion recognized the line of cases, and in particular its opinion in Dusseau (relied on by the First District Court of Appeal) concerning the notion that “when determining whether the administrative decision was founded on competent, substantial evidence, the circuit court may only look for facts in the record that support the agency fact-finder’s conclusions.” Id. at 1171. However, the majority noted that “this Court and others have voiced concerns with fairness and due process specifically in the context of hearings held before Department hearing

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officers under section 322.2615.” Id. After providing examples of such concerns, the majority stated:

. . . Today, we address those concerns. The substance of cases that involve special issues of zoning or policy decisions greatly differ from those that involve license suspensions for DUI. A court conducting section 322.2615 first-tier certiorari review faces constitutional questions that do not normally arise in other administrative review settings. Every case involving a license suspension contains a Fourth Amendment analysis of whether there was reasonable suspicion to stop the vehicle or probable cause to believe that the driver was in physical control of the vehicle while under the influence of alcohol. § 322.2615(7)(b) 1. With that, first-tier review under this particular statute demands a close review of the factual record to determine whether the hearing officer’s findings were supported by competent, substantial evidence and whether the essential requirements of the law were applied. Nader, 87 So.3d at 723. Some consideration of the evidence is inescapable in the competent, substantial evidence determination. These are legal questions that call for an unbiased review, rather than being solely left to the discretion of a hearing officer who is actually employed by the Department. While a policy that provides deference to the agency fact-finder may be appropriate in special areas such as zoning or policy decisions, which involve concepts that require a certain level of expertise that can be provided by a nonlawyer, the same does not hold true for the questions of constitutional law that arise under section 322.2615. It is no wonder, then, that the Legislature created a statute to tailor review for this narrow situation.

Id. at 1171-1172. Ultimately, the majority concluded:

Accordingly, we hold that in the limited context of section 322.2615 first-tier review of a DUI license suspension, a circuit court applies the correct law by rejecting officer testimony as being competent, substantial evidence when that testimony is contrary to and refuted by objective real-time video evidence. That which is found by an Article V judge in this context to be totally refuted by objective, neutral real-time video evidence cannot be deemed competent, substantial evidence.

Id. at 1175. The dissent took issue with this special modification of the standard of review and with the result in this case. In particular, the dissent provided the following critique:

The majority has now decided that Dusseau should not be applied to courts conducting first-tier certiorari review of administrative license suspensions because section 322.2615 requires a determination of the lawfulness of the stop

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under the Fourth Amendment, which, the majority asserts, raises “legal questions that call for an unbiased review, rather than solely left to the discretion of a hearing officer who is actually employed by the Department” and “which involve[s] concepts that require a certain level of expertise that can be provided by a nonlawyer, the same does not hold true for the questions of constitutional law that arise under section 322.2615.” Majority op. at 1172. But there is no dispute that if Wiggins swerved within his lane, almost struck the curb on several occasions, braked erratically, and was traveling 30 mph in a 45–mph zone, the stop was lawful. The question was whether Wiggins did those things, and making such findings does not require a particular expertise in Fourth Amendment jurisprudence. The majority also justifies its rejection of Dusseau in the context of review under section 322.2615 because it views video evidence as “objective and neutral,” which “allows it to be viewed by the Article V judicial officer on first-tier certiorari without the need for interpretations of the hearing officer.” Majority op. at 1172. But as the First District aptly pointed out,

the quality and context of a video, like that in this case, may not capture or explain the finer nuances that the human eye of a trained (though here relatively inexperienced) DUI officer may perceive. Which explains why the officer said he picked up on some unusual movement of the vehicle or its taillights at a distance (“a good ways back at that point”) that the camera could not fully capture because the “video isn’t always the best.” What the officer believed he saw, unless entirely inconsistent with the video, is to be credited. The officer’s eyes were multi-tasking: watching the road to safely operate the patrol car while intermittently observing the vehicle’s driving pattern. He may have believed the vehicle hit the fog line at the time, but upon review of the video the vehicle did not drift quite that far—but it drifted nonetheless. These types of contextual inconsistencies between the video and the officer’s testimony/report are lost by crediting the video to the exclusion of the record as a whole.

Wiggins, 151 So.3d at 467. “Unlike the circuit court, the hearing officer could evaluate the credibility of the officer and make a determination, for example, that he was truthful in his explanation of what he saw, and what his report said, regarding the vehicle’s driving pattern.” Id. at 465. Thus, the hearing officer had a superior vantage point in evaluating all of the evidence, including the video. Further, the video—even as interpreted by the circuit court and the majority—does not refute Deputy Saunders’ testimony that Wiggins drove 15 mph below the speed limit at 2:10 a.m., braked erratically, and made some erratic motion when his vehicle first came into Deputy Saunders’ view. “[J]ust like any other type of evidence, video is subject to conflicting interpretations.” Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014). For example,

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in Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), Justice Scalia, writing for a majority of the Court, interpreted a video as showing “a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury,” while Justice Stevens, in dissent, interpreted the same video as “hardly the stuff of Hollywood” and opined that it did not show “any incidents that could even be remotely characterized as ‘close calls,’ ” id. at 392, 127 S.Ct. 1769. Making a determination of what a video shows is a factual finding that does not require any particular expertise and is therefore entitled to deference by a reviewing court. See, e.g., State v. Cortez, 482 S.W.3d 176, 181 (Tex. App.–Amarillo 2015) (holding that because it was not easily discernable from a video whether defendant’s tires touched the fog line, the reviewing court was required to defer to the trial court’s interpretation of the events captured on the video), vacated on other grounds, 501 S.W.3d 606, 610 (Tex. Crim. App. 2016). This is especially true when the video evidence is considered in conjunction with other evidence by the lower tribunal. See In re M.K., 198 Vt. 233, 114 A.3d 107, 111 n.* (2015) (citing cases). For these reasons, I would approve the well-reasoned opinion of the First District and hold that Dusseau is applicable in the context of first-tier certiorari review under section 322.2615 and that a circuit court applies incorrect law when it reweighs or reevaluates conflicting evidence, rather than simply reviewing the record to determine whether the lower tribunal’s decision is supported by competent, substantial evidence. I thus would answer the question certified by the First District in the affirmative. I dissent.

Id. at 1179-1181.

15. The meaning of the term “the administration of a breath or urine test is impractical or impossible” in F.S. 316.1932(1)(c) (new topic)

Bedell v. State, 250 So.3d 146 (Fla. 1st DCA May 31, 2018), on motion for clarification, 249 So.3d 1329 (Aug. 19, 2018): In this case, the defendant submitted to a blood draw while at the hospital. His motion to suppress the blood test was denied by the trial court. On appeal, he argued that the trial court should have suppressed the blood test because the State failed to present any evidence that a urine test was “impractical.” This argument was based on F.S. 316.1932(1)(f) which provides, in summary, that consent to a blood draw is deemed to be implied where there is reasonable (i.e., probable) cause to believe the person is DUI, the person appears for treatment at a medical facility, and “the administration of a breath or urine test is impractical or impossible.” The First District Court of Appeal upheld the trial court’s finding that it was impractical to administer a urine test to the defendant under the circumstances. The trial court had specifically relied on the deputy’s testimony and considered his medical training and background, when he testified that he believed the defendant could not safely stand and walk to the bathroom to provide a sample without falling. The First District then stated:

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Our review of the record testimony at the motion hearing confirms that the deputy proceeded with the blood test because he believed Appellant was not in a condition to safely provide a urine sample at the time. The fact that medical personnel could have been called in to assist Appellant to the bathroom, as suggested by defense counsel on cross-examination, is inapposite. Even if a urine test was not “impossible” due to the availability of hospital personnel to assist, the trial court’s finding that a urine test was ‘impractical’ is an alternative statutory basis upon which Appellant may be deemed to have consented to submit to an approved blood test under section 316.1932(1)(c).

250 So.3d at 150. Note that the First District’s opinion appeared to leave the impression that in order to justify a blood draw under section 316.1932(1)(c), the State must prove that a urine test is impractical, even when the State is seeking only an alcohol result rather than a controlled substance result. It is this author’s position that such an impression is legally incorrect. See, e.g., State v. Stocker, 10 Fla L. Weekly Supp. 487 (Cir. Court, 19th Cir. [Martin County], April 21, 2003). In Stocker, the circuit court noted that “the officer testified that he did not request a urine test as his ‘investigation was focused on alcohol’ and ‘the blood test is for alcohol’ while a urine test is primarily used for ‘drugs.’ ” In a footnote, the circuit court explained:

The unrebutted testimony of the officer established this fact. However, section 316.1932(1)(a) makes it apparent that the legislature contemplated the use of urine tests only for the purpose of testing for controlled substances. It would therefore not seem necessary for the officer to determine that a urine test is impossible or impractical when seeking evidence of alcoholic content only. See State v. Alden, 6 Fla. L. Weekly Supp. 45b (Palm Beach County Court September 23, 1998) [It is impracticable for an officer to administer a urine test in an alcohol case, as the results of a urine test do not give a quantitative analysis of the alcoholic content of a suspect's blood]; State v. Lear, 7 Fla. L. Weekly Supp. 509b (Brevard County Circuit Court December 8, 1999) [Urine test is not a proper test to measure alcohol content]; State v. Peterson, 7 Fla. L. Weekly Supp. 632c (Broward County Court May 4, 2000) [Urine test useful only when seeking evidence of drug use].

(Emphasis added). After the First District’s opinion was released, this author expressed his concern regarding the above-stated impression to the Attorney General’s Office. At the suggestion of this author, on June 14, 2018, the Attorney General’s Office filed a Motion for Clarification. In particular, the Motion requested that the Court recognize that urine tests under F.S. 316.1932(1)(a) are for the purpose of detecting the presence of controlled substances under Chapter 893 or for detecting chemical substances as set forth in s. 877.111, not for the purpose of detecting or measuring alcohol.

On August 14, 2018, the First District denied the State’s Motion for Clarification without comment. However, Judge Winokur filed a written concurring opinion which, in effect, largely

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accomplished what this author was seeking. Here’s what the concurring opinion stated, in its entirety:

The State argues that the opinion should be clarified to dispel any suggestion that “a urine test for alcohol is available or even necessary before consent to a blood test is upheld.” According to the motion, under section 316.1932(1)(c) the State must show that administration of a urine test was impractical or impossible, thus supporting a blood draw, only when the officer has reason to believe that the suspect was under the influence of a controlled substance. When the officer believes the suspect was under the influence of alcohol, as here, the State must only show that administration of a breath test was impractical or impossible before resorting to a blood draw, according to the motion. This is because, the motion claims, no urine test can detect the amount of alcohol in the blood stream, so the Legislature must have meant to limit urine tests in this context to suspicion of driving under the influence of controlled substances. The State supports this contention with citations to circuit court opinions, as well as the Florida DUI Handbook. I agree that clarification on this point is unnecessary, for two reasons. First, the question of whether a urine test was impractical or impossible before police could resort to a blood draw was always part of this case. If in fact the State was not required to prove this point, that suggestion did not appear here. Second, it is not clear that section 316.1932(1)(c) makes the distinction that the State asserts in its motion. Whether such a distinction exists will have to wait upon another case, one where this issue is properly before the Court.

249 So.3d at 1329. (Emphasis in the concurring opinion). F. Medical Blood Guardado v. State, 61 So.3d 1210 (Fla. 4th DCA 2011): State failed to establish a nexus between medical blood evidence and automobile crash so as to be entitled to subpoena defendant’s medical records; State relied on inadmissible legal blood to obtain the medical blood, State did not rely on any lawful evidence which showed any nexus between defendant’s medical blood and traffic crash investigation, i.e., no police reports, arrest affidavits, or other documents were presented to the court, and there was no indication that State actually relied on probable cause affidavit at hearing on defendant’s objection to issuance of subpoena for his medical records. However, Court stated that on remand, the State was not precluded from again seeking the medical records through a subpoena if it proffers evidence which demonstrates the relevance of the medical blood evidence, as its actions below did not rise to the level of bad faith. State v. Salle-Green, 93 So.3d 1169 (Fla. 2d DCA 2012): Both legal and medical blood results were challenged in this DUI Manslaughter case. Here, the requesting trooper identified the blood kit and associated paperwork, but could not independently remember what led him to request the blood draw to be performed. He confirmed he did not get any information from the nurse. The

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nurse testified that she did not remember the events of the evening but confirmed her signature on the kit and described her general procedures, including that it was hospital policy to give law enforcement verbal information of the blood alcohol level, although she could not remember if she told the trooper that in this case. The trial court suppressed the legal blood and the Second District Court of Appeal affirmed as to this ruling. However, the State fared better on the medical blood issue. Specifically, the trial court originally suppressed the medical blood results but the State attempted to "re-subpoena" the records and put on more testimony about the facts surrounding the crash itself. The trial court noted that the threshold that the State needed was fairly low and that the State might have prevailed if they did it correctly the first time; but the trial court denied reconsideration of the medical records. The Second District Court of Appeal found that under F.S. 316.1933(2)(a)(1), the trooper would have been authorized to request a blood sample if the nurse had told him that the defendant was above the legal limit – and here the trooper and the nurse testified that the legal blood was performed but could not testify positively that it was based on the medical test results. Thus, the Court held that the trooper’s actions did not amount to bad faith and reversed the suppression of the hospital records. Laws v. State, 145 So.3d 937 (Fla. 2d DCA 2014): Defendant's refusal to take a blood, breath, or urine alcohol test after he was involved in motor vehicle accident did not, by itself, preclude admission at his felony DUI trial of the results of medical blood test performed at hospital where defendant was treated after the accident. Defendant’s contention that admission of the medical blood test results would violate double jeopardy because defendant was also subject to administrative sanctions under the implied consent statute was rejected by Court. Administrative penalty of revocation of defendant’s driver’s license was a civil sanction, rather than a criminal punishment, and thus did not bar the subsequent criminal prosecution. Gomillion v. State, 267 So.3d 502 (Fla. 2d DCA March 20, 2019): Second District Court of Appeal found that State did not prove compelling interest in toxicology records of defendant, which were collected at medical center after defendant allegedly rear-ended taxi, as necessary to overcome constitutional privacy protection of medical records, in prosecution for leaving the scene of accident and carelessly or negligently causing serious bodily injury while driving on canceled, suspended, or revoked license, where state did not assert or prove defendant’s toxicology records were relevant to any element of any offense with which defendant was charged or to any defense defendant may have presented to charges. Further, Second District found that State did not present evidence by which it was reasonable to believe that toxicology records of defendant would indicate defendant was under influence of drugs or alcohol at time of crash, as necessary to overcome constitutional privacy protection of medical records under theory that state could impeach defendant's ability to observe, remember, or recount events of evening of crash if he had been intoxicated, where arrest affidavit contained no indication that arresting deputies made observations of defendant’s smell, appearance, or demeanor, as would suggest intoxication. G. Independent Blood Tests DHSMV v. Cherry, 91 So.3d 849 (Fla. 5th DCA 2011): In this administrative license suspension case, the issue was whether the driver had actually “refused” so as to give rise to a

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one year license suspension. Here, the driver was extremely difficult at the breath test center when “attempting” to give a breath test on the Intoxilyzer 8000. She gave two samples with deficient volume which were noted by the instrument to be “Not Reliable to Determine Breath Alcohol Level.” During the breath test process, the driver also requested a blood test which was denied. The hearing officer upheld the suspension for refusal. The driver filed a petition for writ of certiorari at the circuit court on several grounds. The circuit court invalidated the suspension based on its findings that the driver did not refuse and that she should have been assisted in providing an independent blood test. The Fifth District Court of Appeal reversed. The Court ultimately determined that because neither of the driver’s breath samples met the minimum requirements for volume, then neither sample was reliable, and neither was valid. As such, the Court determined that the driver did refuse to submit to a breath test, and therefore her right to seek an independent blood test did not arise, citing DHSMV. v. Green, 702 So.2d 584 (Fla. 2d DCA 1997) (which held that the right to an independent blood test only matures after the DUI arrestee submits to the DUI breath test and desires to obtain an independent test). The Court noted also that although the driver clearly did seek a blood test during the proceedings at the breath test center, the video revealed that she repeatedly asked for a blood test only in the context of seeking a blood test in lieu of a breath test, not in addition to a breath test. Therefore, the Court found that the driver “never asked for an ‘independent’ blood test,” and quoted the statement in Green, supra, that “Mr. Green had no right to demand a blood test instead of a breath test.” 91 So.3d at 855, n.2, quoting Green at 702 So.2d 586. CHAPTER VII: Judgment of Acquittal C. The Standard as Applied to DUI Manslaughter Cases (new topic) Pennington v. State, 100 So.3d 193 (Fla. 5th DCA 2012): (This case was also discussed at page 2 in the context of DUI Manslaughter; Causation Issues.). This was a DUI Manslaughter case with a collision between a sport utility vehicle and a motorcycle with no witnesses. Based on motorcycle tire tracks over the top of the SUV and the damage to the motorcycle, it was evident that the motorcycle had ridden up and over the top of the SUV. Due to lack of damage to the front forks of the motorcycle, but extensive damage to the undercarriage, the State's expert believed that there were two possible explanations: (1) the motorcycle was in the wheelie position where the headlight would have been pointing up and thus the defendant would never have seen it (and then would not be the cause of the death) or (2) the motorcycle hit the front tire of the SUV and then launched onto the SUV, but if that had happened, he would expect to see damage to the front tire of the SUV and there was none. The defendant's expert determined that the motorcycle had been in the wheelie position. Defense moved for judgment of acquittal based on the case being a circumstantial evidence case and the State's inability to disprove the defendant's reasonable hypothesis of innocence, that the motorcycle had been in the wheelie position, and that even a sober person would not have seen the victim and avoid the accident. The trial court denied and the Appellate Court reserved. The Court cited the standard of law "Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any

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reasonable hypothesis of evidence." It then found that the State did not adduce a single shred of evidence inconsistent with the defendant's theory. (No cases pertaining to CHAPTER VIII) CHAPTER IX, Sentencing A. Mandatory and Maximum Penalties State v. Schumache, 99 So.3d 632 (Fla. 1st DCA 2012), State v. Schroff, 103 So.3d 225 (Fla. 1st DCA 2012) and State v. Kremer, 114 So.3d 420 (Fla. 5th DCA 2013): DUI Manslaughter sentence that is devoid of four year minimum mandatory prison sentence is illegal. E. The Alleged Involuntariness of a DUI Plea when a Defendant is Not Advised of Potential Administrative Driver’s License Suspension Consequences Baker v. State, 115 So.3d 1081 (Fla. 5th DCA 2013): This case is similar to Johnson v. State, 933 So.2d 1203 (Fla. 5th DCA 2006), which was discussed at page 283 of the DUI Law Manual. In Johnson, the defendant was charged with Felony DUI, fourth offense, but pled to lesser charge of simple DUI. As part of a plea agreement, the defendant was given a twelve month license suspension but DHSMV later permanently revoked his license. The Fifth District Court of Appeal in Johnson held that notwithstanding that a driver’s license suspension was a collateral consequence of plea, it was error for the trial court to deny without a hearing the defendant’s subsequent 3.850 motion which alleged that his trial counsel was ineffective by misadvising him that he would only receive a twelve month suspension. The only additional factor in Baker is that before filing his 3.850 motion, the defendant had previously filed a rule 3.170 motion to withdraw the plea, alleging that State failed to honor its plea agreement, which motion was denied. The Fifth District Court of Appeal in Baker found that the prior 3.170 motion did not constitute a procedural bar to his 3.850 motion because the prior motion did not raise the ineffective assistance of counsel issue. Accordingly, the Court remanded the case to allow the trial court to address the claim by either attaching records conclusively refuting the claim or holding an evidentiary hearing. This case serves to act as a reminder to prosecutors that any time an enhancement DUI is reduced to a simple (or lesser) DUI with less serious license suspension consequences, the defendant should be advised on the record that notwithstanding the plea agreement, DHSMV could revoke the defendant’s license for a longer period of time. Berrocales v. State, 2019 WL 384961 (Fla. 4th DCA Jan. 30, 2019): Evidentiary hearing on defendant’s post-sentencing motion to withdraw guilty pleas was required to determine whether defendant’s alleged ignorance of mandatory three year driver’s license revocation upon his guilty

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plea to driving under influence (DUI) involving serious bodily injury to another created manifest injustice rendering plea involuntary. G. Downward Departures from the Criminal Punishment Code State v. Torres, 60 So.3d 560 (Fla. 2d DCA 2011): In DUI Manslaughter case, where defendant killed his two passengers with whom he had been drinking, Court held defendant not entitled to downward departure based on victims being willing participants in the incident, but did allow departure based on offense being committed in an unsophisticated manner, was an isolated incident, and the defendant was remorseful. State v. Henderson, 108 So.3d 1137 (Fla. 5th DCA 2013): Downward departure not appropriate due to the need for the defendant to be rehabilitated from her addiction to alcohol in Felony (4th) DUI. Calling it “rehabilitation” does not get around prohibition for downward departure based on substance abuse or addiction. State v. Henderson, 152 So.3d 49 (Fla. 5th DCA 2014): Back after remand from the just-cited case, the Defendant this time sought a downward departure based on the ground that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” The defendant argued that her offense was isolated because it was her first felony DUI. The trial court – amazingly – agreed, stating: “Henderson has never before had a felony DUI, so that meets the legal test. And ... it had been some ten months or more before she had had a previous DUI.” On appeal, the Fifth District Court of Appeal easily reversed:

Florida's sentencing scheme requires the trial court to impose a sentence that comports with the guidelines unless a valid basis for departure is established. See § 921.0026, Fla. Stat. Section 921.0026(j) cannot, and should not, be read to mean that as long as the defendant has never committed the exact offense for which he or she is currently being sentenced, the offense can be considered isolated regardless of the defendant's criminal history. For example, a person being sentenced for sexual assault who has numerous prior robbery convictions cannot be eligible for a downward departure simply because he has never previously been convicted of a sexual assault. In this case, Henderson had three prior DUI convictions. The second, third, and fourth DUIs were committed within a two-year period. The fourth DUI occurred just ten months after the third DUI, while Henderson was still on probation. The fact that she was able to avoid being arrested for ten months does not render her last DUI isolated. See State v. Stephenson, 973 So.2d 1259, 1263–64 (Fla. 5th DCA 2008) (holding that incident was not isolated where defendant had a “substantial criminal record prior to the current offense”); State v. Bell, 854 So.2d 686, 691 (Fla. 5th DCA 2003) (noting that multiple driving while license suspended convictions prove that crime was not isolated).

152 So.3d at 50-51.

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State v. Burt, 183 So.3d 1117 (Fla. 5th DCA 2015): Evidence was insufficient to support finding that offenses of DUI causing serious bodily injury and careless operation of a motor vehicle without a license causing serious bodily injury were isolated incidents, as required to permit a downward departure sentence; defendant’s prior record consisted of two alcohol-related driving offenses, a DUI conviction in 2006 and a reckless driving conviction in 2007, as well as a conviction for driving without a valid driver’s license in 2012. K. Other Enhancement Issues

2. Use of uncounseled prior DUI to enhance current DUI offense to Felony DUI

Hyden v. State, 117 So. 3d 1 (Fla. 2d DCA 2011): Here, the Second District Court of Appeal followed State v. Kelly, 999 So.2d 1029 (Fla.2008) and held that the trial court should have dismissed this felony DUI because the defendant met his burden of showing that his first DUI from 1983 had been uncounseled. In so ruling, the Court rejected the two arguments raised by the State. First, the State argued that the defendant’s motion to dismiss and affidavit were facially insufficient because they were not notarized. Specifically, the defendant had utilized the verification method which courts have authorized in post-conviction proceedings pursuant to section 92.525(1), Florida Statutes (this statute allows verification by the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true.”). The Court acknowledged that “the law on the oath requirement for a motion to dismiss and accompanying affidavit under Kelly is not settled.” However, the Court found it unnecessary to decide this issue, finding that the State had failed to preserve this argument for appeal. In a footnote, the Court did make the following comment: “We note that this court has suggested that, under Shearer, the oath in section 92.525(2) is available to ‘a prisoner untrained in the law.’ Keene v. Nudera, 661 So.2d 40, 43 (Fla. 2d DCA 1995). However, Hyden's motion to dismiss and affidavit were filed by defense counsel.” The State’s other argument was that a written form that defendant had signed when he entered his not guilty plea in 1983 was sufficient to establish a waiver of his right to counsel. However, the Court found that the form was signed six weeks prior to the date the defendant entered his actual plea of guilty and did not establish that he was offered and waived counsel at the time he changed his plea from not guilty to guilty. Accordingly, the Second District reversed the felony DUI conviction and remanded for entry of the appropriate misdemeanor conviction and sentence. The Court noted, however, that pursuant to Kelly, although the defendant’s 1983 conviction may not be used to qualify the fourth DUI as a felony offense, it may be used to support enhanced penalties and fines short of incarceration for the misdemeanor DUI. Yacoub v. State, 85 So.3d 1179 (Fla. 4th DCA 2012): Court held that fact that defendant pled to two DUI’s on same date, where public defender’s office agreed that they handled one of them, was insufficient to carry the State’s burden of persuasion, for purposes of charging Felony DUI, that plea was counseled or validly waived pursuant to State v. Kelly, 999 So.2d 1029 (Fla. 2008).

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L. Admissibility of Hearsay in Sentencing Hearings (New Topic) McInerney v. State, 213 So.3d 933 (Fla. 4th DCA 2017): At the sentencing hearing in this DUI Manslaughter case, the State offered a statement (apparently a written statement) of an eyewitness into evidence. The trial court overruled a hearsay objection. On appeal, the Fourth District Court of Appeal noted that this was an issue of first impression. The Court acknowledged that the capital sentencing statute, section 921.141(1), Florida Statutes, speaks directly to the issue by stating: “Any such evidence that the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.” The Court noted also that “cases have uniformly held hearsay is admissible at a probation revocation hearing, which has been described as a ‘deferred sentencing proceeding.’ ” 2017 WL 1013195, at * 2, quoting State v. Davis, 133 So.3d 1101, 1105 n.6 (Fla. 3d DCA 2014) (citing Peters v. State, 984 So.2d 1227, 1230 (Fla. 2008)). Finally, the Court noted that rule 3.720(b) of the Florida Rules of Criminal Procedure provides some guidance because it requires the trial court to “entertain submissions and evidence by the parties that are relevant to the sentence” and the Court found that the eyewitness’s statement was certainly relevant to the trial court’s imposition of a sentence. Ultimately, the Court concluded:

We can find no prohibition to admitting the hearsay statement in this non-capital sentencing hearing. In fact, our sentencing rule contemplates the submission of such relevant evidence as the eyewitness’s statement. The defendant was able to provide his own statement concerning the accident; a statement contradicting that of the eyewitness. The trial court properly considered the defendant’s testimony, the eyewitness’s statement, and the testimony of the homicide investigator. We now hold that hearsay is admissible in non-capital sentencing hearings. We affirm on this issue.

Id.

CHAPTER X, Miscellaneous Issues A. Double Jeopardy Kehn v. State, 44 So.3d 640 (Fla. 5th DCA 2010): Reinstatement of DUI charge after defendant successfully moved to withdraw guilty plea did not subject defendant to double jeopardy; further, the delay in prosecution resulting from successful withdrawal of plea was not chargeable against

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the State for speedy trial purposes. Compare this result to the result in Kirchhof v. State, 75 So.3d 402 (Fla. 5th DCA 2011), which is addressed at page 126 of this Update. Ivey v. State, 47 So.3d 908 (Fla. 3d DCA 2010): Convictions for both DUI Manslaughter and Vehicular Homicide violated double jeopardy since long standing Florida precedent precludes dual convictions arising from single death; Court held that recent Florida Supreme Court case of Valdes v. State, 3 So.3d 1067 (Fla. 2009) did not change this precedent; Court held that double jeopardy also precluded conviction for Leaving Scene of Crash Resulting in Death where Defendant’s DUI Manslaughter conviction was enhanced from a second-degree felony to a first-degree felony because Defendant left the scene of the fatal accident. Lott v. State, 74 So.3d 556 (Fla. 5th DCA 2011): Here, the Fifth District Court of Appeal held that convictions and sentences for DWLS causing serious bodily injury and reckless driving causing serious injury did not violate double jeopardy, even though only one person was injured. This ruling effectively conflicts with the Second District’s ruling in Kelly v. State, 987 So.2d 1237, 1239-40 (Fla. 2d DCA 2008) (which had relied on cases prohibiting two convictions for one death in holding that it was a double jeopardy violation to convict and sentence for both DUI with serious bodily injury and driving without a valid license with serious bodily injury based on an injury to a single victim). The Fifth District in Lott specifically found that the double jeopardy principle prohibiting two convictions for one death was a special exception to the normal Blockburger comparison of the elements test (as codified in section 775.021(4)). That is, the Court stated that notwithstanding the usual test, "Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes." On the other hand, the Fifth District concluded that "there is no clear statement of legislative intent in the two statutes at issue to either authorize or prohibit separate convictions and punishments based on a single injury to the same victim. Therefore, the Blockburger analysis under section 775.021(4) must be utilized, and under that analysis, there is no double jeopardy violation here." Note that although the Fifth District in Lott acknowledged the Second District’s Kelly case, it did not certify (or even acknowledge) the conflict.

Kopson v. State, 125 So.3d 169 (Fla. 4th DCA 2013): Defendant cannot be convicted of both DUI Manslaughter and DWLS causing death where there is only a single death due to double jeopardy. Defendant also cannot be convicted of both DUI with serious bodily injury while impaired and DUI with serious bodily injury with an unlawful blood alcohol level under the same statute. Finally, defendant cannot be convicted of DUI manslaughter twice for the same death. Baron v. State, 125 So.3d 979 (Fla. 4th DCA 2013): Convictions for (1) Leaving the Scene with Death and (2) DUI Manslaughter with enhancement (second degree to first degree) for leaving the scene of accident with death barred by double jeopardy. The reason why double jeopardy applied is because here, the defendant’s DUI manslaughter conviction was enhanced from a second degree felony to a first degree felony because he left the scene of a fatal accident, and he was separately convicted of leaving the scene of the same fatal accident. Compare this result to the Prestano case, below.

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Laws v. State, 145 So.3d 937 (Fla. 2d DCA 2014): Defendant's refusal to take a blood, breath, or urine alcohol test after he was involved in motor vehicle accident did not, by itself, preclude admission at his felony DUI trial of the results of medical blood test performed at hospital where defendant was treated after the accident. Defendant’s contention that admission of the medical blood test results would violate double jeopardy because defendant was also subject to administrative sanctions under the implied consent statute was rejected by Court. Administrative penalty of revocation of defendant’s driver’s license was a civil sanction, rather than a criminal punishment, and thus did not bar the subsequent criminal prosecution. Crusaw v. State, 195 So.3d 422 (Fla. 1st DCA 2016): Where there was only one death, double jeopardy principles barred conviction for both vehicular homicide and careless driving with a suspended license resulting in death. Prestano v. State, 210 So.3d 772 (Fla. 5th DCA 2017): Defendant’s convictions as a result of his plea of no contest to DUI Manslaughter and Leaving the Scene of an Accident that resulted in Death did not violate double jeopardy. The Court found that the “one homicide conviction per death” rule did not apply because DUI Manslaughter is an unmodified homicide offense, and LSA Resulting in Death is a non-homicide traffic offense. In such cases, double jeopardy is not violated unless the offender’s failure to render aid is used to enhance the DUI from a second-degree felony to a first-degree felony. That didn’t happen in this case. Accord, McCullough, 230 So.3d 586 (Fla. 2d DCA November 8, 2017) (Vehicular Homicide & LSA w/Death). Goodman v. State, 229 So.3d 366 (Fla. 4th DCA 2017): Court found that conviction for DUI manslaughter and for vehicular homicide involving a single victim violated double jeopardy. No surprise here, but the Court did have an interesting footnote, explaining the problem of dealing with such double jeopardy problem when there are other issues that need to be resolved as well:

We recognize that the trial court withheld adjudication and sentencing on vehicular homicide at the State’s request to hold it in abeyance pending the results of the appeal of appellant’s conviction and sentence on DUI manslaughter. We recognize the dilemma both the court and the State face in such a circumstance. Resolving a double jeopardy issue on appeal where there are substantial issues as to the other conviction may be a reasonable solution.

229 So.3d at 382, n.3. Granger v. State, 237 So.3d 486 (Fla. 5th DCA 2018): Where there was only one death, double jeopardy principles barred conviction for both DUI Manslaughter and Vehicular Homicide. Marsh v. State, 253 So.3d 674 (Fla. 2d DCA 2018), review accepted, 2019 WL 1760085 (Fla. April 22, 2019) and Anguille v. State, 243 So.3d 410 (Fla. 4th DCA 2018), proceedings stayed pending disposition of Marsh case, (Fla. Feb. 5, 2019): These two cases decided five days apart reach opposite conclusions regarding the issue of whether the “one homicide conviction per death” rule applies to dual convictions for one injury. It appears that the Florida Supreme Court will probably settle the dispute based on its recent determination to accept review of the Marsh case. The conflict on this issue actually goes back a ways:

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Back in 2008, the Second District Court of Appeal had held in Kelly v. State, 987 So.2d 1237 (Fla. 2d DCA 2008) that the “one homicide conviction per death” rule does apply to a single injury in ruling that dual convictions for DUI with serious bodily injury and Driving without a Valid License with serious bodily injury violated double jeopardy. Three years later, the Fifth District Court of Appeal held in Lott v. State, 74 So.3d 556 (Fla. 5th DCA 2011) that convictions for both Reckless Driving and DWLS that were both enhanced for causing serious bodily injury to the same victim did not place the defendant in double jeopardy. The Fifth District in Lott acknowledged the defendant’s argument which relied on the Second District’s Kelly case but, without certifying conflict, implicitly disagreed with Kelly, finding no legal support “to extend the reasoning from Cooper and Chapman, both of which involved a single homicide, to the instant case where a single serious injury occurred.” 74 So.3d at 559. In the Marsh case, the Second District re-affirmed its legal reasoning in Kelly by holding that dual convictions for both DUI with Serious Injury and DWLS with Serious Injury violate double jeopardy. As turnabout is fair play, the Second District in Marsh acknowledged the contrary view of the Fifth District in Lott but did not certify conflict. It simply reiterated its own interpretation of the rationale for the “single homicide rule,” and stated: “We remain unconvinced that Kelly was wrongly decided.” 253 So.3d at 676. Five days after the Second District decided Marsh, the Fourth District decided Anguille. The Fourth District in Anguille held that convictions for both DUI with serious injury and Reckless Driving with serious injury do not violate double jeopardy. The Court in Anguille explained:

Adding the serious bodily injury enhancement to both reckless driving and the DUI charge does not change the underlying elements of the offense, but merely adds an element to enhance the penalties of the underlying charges. Reckless driving and DUI do not require identical elements of proof, they are not degrees of the same offense, nor is either a lesser offense that is subsumed within the other.

243 So.3d at 413. The Court in Anguille did not acknowledge Kelly, Lott, or Marsh, but did state the following in a footnote: “Many of the defense cases involve DUI manslaughter and vehicular homicide. We are mindful of the fact that death is different; the ‘single homicide rule’ may come into play.” Id. at n.3. Based on the unstated conflict that exists between the holding in Marsh and the holdings in Lott and Anguille, on April 16, 2018 the Attorney General’s Office filed a “Motion for Rehearing, Rehearing en Banc, and Certification of Conflict” in the Marsh case. That Motion was denied by the Second District on June 19, 2018. The State then sought discretionary review in the Florida Supreme Court. As previously mentioned, the Court accepted review on April 22, 2019. Also, although the Court has not formally accepted review of the Anguille case, the Court did issue, on February 5, 2019, a stay of the proceedings in Anguille pending disposition of the Marsh case.

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It is the undersigned author’s opinion that the Fourth District in Anguille and the Fifth District in Lott applied the law correctly, while the Second District in Kelly and Marsh misapplied the law. The reason for this is as follows: In explaining why it re-affirmed its position in Kelly, the Second District in Marsh stated:

The single homicide rule “is based on notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing.” Gordon v. State, 780 So.2d 17, 25 (Fla. 2001), receded from on other grounds by Valdes v. State, 3 So.3d 1067 (Fla. 2009). “[P]hysical injury and physical injury causing death, merge into one and it is rationally defensible to conclude that the legislature did not intend to impose cumulative punishments.” Id. (quoting Carawan v. State, 515 So.2d 161, 173 (Fla. 1987) (Shaw, J., dissenting) ). Although there was no death in Gordon, the supreme court determined that “the logical extension of” the single homicide rule precludes dual convictions based on a single attempted homicide. Id.

253 So.3d at 677. The problem with this explanation is that, for reasons to be shown herein, the Court in Marsh took the quoted passages from the Florida Supreme Court’s opinion in Gordon out of context; further, Marsh’s reliance on Gordon was inapposite in any event in view of the subsequent case of Valdes v. State, 3 So.3d 1067 (Fla. 2009). In Gordon, the Florida Supreme Court had held that convictions of attempted first-degree murder, felony causing bodily injury, and aggravated battery causing great bodily harm, which arose from an incident in which the defendant confronted the victim with a gun, punched him in the face, demanded his money, and shot him in the side while simultaneously grabbing his wallet, did not violate double jeopardy. The Court found that these crimes (1) constituted separate offenses, and (2) were not “degree variants” of the same underlying offense. More particularly, the Court in Gordon first noted that under a traditional Blockburger analysis, which is required by section 775.021, the crimes at issue were separate offenses for double jeopardy purposes because each of these crimes contained an element that the other did not. The Court then acknowledged that even if the offenses satisfy the Blockburger test, they may still be considered degree variants of the same core offense under the second exception in section 775.021(4)(b). The Court explained that “exceptions for homicides . . . are consistent with the limited statutory exception. However, extension of this exception to multiple convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury would contravene the plain meaning of section 775.021.” 780 So.2d at 23. The Court in Gordon then distinguished cases relied on by the defendant for his double jeopardy claim because “those cases were decided based on the rationale that ‘the legislature did not intend to create a separate offense for every murderous blow that a defendant inflicted upon a deceased in a single incident.’ [quoting Campbell-Eley v. State, 718 So.2d 327 (Fla. 4th DCA

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1998)]. That rationale is not applicable here, where an actual homicide did not occur as a result of Gordon's criminal actions.” Id. at 25. (Emphasis added). The next two paragraphs in Gordon constitute the passage from which the Second District quoted, but only in part, in Marsh:

In a similar argument, Gordon highlights the principle that convictions for both premeditated murder and felony murder are impermissible when only one death occurred. See Goss v. State, 398 So.2d 998, 999 (Fla. 5th DCA 1981). We have held repeatedly that section 775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides. See Goodwin v. State, 634 So.2d at 157-58 (Grimes, J. concurring) (“I believe that the Legislature could not have intended that a defendant could be convicted of two crimes of homicide for killing a single person.”); State v. Chapman, 625 So.2d 838, 839 (Fla.1993); Houser v. State, 474 So.2d 1193, 1196 (Fla.1985) (noting that “only one homicide conviction and sentence may be imposed for a single death”); Campbell-Eley, 718 So.2d at 329; Laines v. State, 662 So.2d at 1250; Goss v. State, 398 So.2d at 999. Indeed, this principle is based on notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing. As Justice Shaw noted in his Carawan dissent, “physical injury and physical injury causing death, merge into one and it is rationally defensible to conclude that the legislature did not intend to impose cumulative punishments.” Carawan, 515 So.2d at 173 (Shaw, J., dissenting). No death occurred in this case. Nonetheless, Gordon contends that the logical extension of this principle dictates that dual convictions for attempted premeditated murder and attempted felony murder are impermissible. The State concedes this point, but emphasizes that section 782.051(1) provides that a defendant may be convicted of both felony causing bodily injury and an enumerated offense. Since the enumerated offense was armed robbery, not attempted murder, the State contends that the felony causing bodily injury conviction was proper. The principle that dual convictions for attempted premeditated murder and attempted felony murder are impermissible is inapplicable to the present case because felony causing bodily injury does not punish the intent to kill, which is presumed under the felony murder doctrine, and is much broader than the former crime of attempted felony murder. Thus, the defendant is not impermissibly subjected to multiple punishments for the attempt to kill one person.

Id. (Emphasis added). The Second District in Marsh misapplied this passage in two ways: First, in the first paragraph from Gordon quoted here (as well as in the earlier portions of the Gordon opinion previously quoted above), the Florida Supreme Court was clearly finding a distinction between dual convictions for one homicide and dual convictions for one injury. That is, the Court specified that the prohibition against dual convictions for one death applied only to homicide convictions,

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but not to convictions involving one injury. The Court had already clarified, earlier in the opinion, that legislative intent is the key factor in determining whether separate punishments are authorized when examining separate offenses:

In light of the subsequent statutory amendment explicitly setting forth the Legislature's intent, the Carawan and Boivin decisions cannot be said to control the instant case. Those decisions were explicitly based on our interpretation of legislative intent, an interpretation expressly rejected by the Legislature. While we noted in Boivinthat the statutory elements of the two crimes were different, we further said that we could discern no legislative intent to separately punish defendants for both crimes. See id. However, we now know the legislative intent. The subsequent amendment to section 775.021 explicitly states, “The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent.” § 775.021(4)(b), Fla. Stat. (1997). Thus, the Carawan and Boivin holdings are not the most reliable guideposts for determining whether a double jeopardy violation exists.

Id. at 24. (Emphasis added). Second, the Second District in Marsh misapplied the significance of the argument made by the defendant (and conceded by the State) in Gordon that “the logical extension of this principle [i.e., the single homicide rule] dictates that dual convictions for attempted premeditated murder and attempted felony murder are impermissible.” 780 So.2d at 25. This is because the crimes at issue in Gordon were not two attempted homicides; rather, they were (1) attempted first degree murder and (2) felony causing bodily injury (as well as a third count for aggravated battery). Accordingly, the Court in Gordon specifically found that “[t]he principle that dual convictions for attempted premeditated murder and attempted felony murder are impermissible is inapplicable to the present case because felony causing bodily injury does not punish the intent to kill, which is presumed under the felony murder doctrine, and is much broader than the former crime of attempted felony murder.” 787 So.2d at 25. An even bigger problem with the ruling in Marsh is that it failed to acknowledge that virtually the entire discussion in Gordon that served as the basis for the ruling in Marsh (regarding “notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing” and the “logical extension” of the single homicide rule) was rendered moot in the subsequent case of Valdes v. State, 3 So.3d 1067 (Fla. 2009). In Valdes, the Florida Supreme Court receded from Gordon’s reliance on the “primary evil” test in deciphering legislative intent, and instead simplified and narrowed the determination of legislative intent in addressing the multiple punishment issue. Specifically, the Court stated:

We conclude that the “primary evil” test defies legislative intent because it strays from the plain meaning of the statute. See Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (“Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is

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essentially one of legislative intent.”); [Citations omitted]. By applying the “primary evil” gloss to the second statutory exception, we have added words that were not written by the Legislature in enacting the double jeopardy exceptions of section 775.021(4) and specifically subsection (4)(b)(2). Rather, this exception simply states that there is a prohibition against multiple punishments for offenses which are “degrees of the same offense.” There is no mention of “core offense” and certainly no mention of “primary evil.” Further, there is no rule of construction that would compel this Court to require such an analysis based on constitutional considerations. [Citations omitted]. There is no constitutional prohibition against narrowly interpreting double jeopardy exceptions precisely because there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode, as long as the Legislature intends such punishments. . . .

3 So.3d at 1075-76. (Emphasis added). The Court in Valdes then applied its newly refined analysis to the case before it:

Under the approach we adopt today, dual convictions for the two offenses at issue in this case, discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes, and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes, do not satisfy the second statutory exception because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense. This is in contrast to sections 790.15(1), 790.15(2), and 790.15(3), which are explicitly degree variants of the same offense. We thus approve the result reached by the Third District in Valdes in concluding that dual convictions for these two offenses do not violate the prohibition against double jeopardy.

Id. at 1077-78. (Emphasis added). (Footnotes omitted). Similarly, the convictions at issue in the Second District’s Marsh case based on one injury (i.e., convictions for both DUI causing serious injury and DWLS causing serious injury) also do not violate the prohibition against double jeopardy. Just as in Valdes, these offenses “do not satisfy the second statutory exception because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense.” The same can be said for the two offenses at issue in the Fifth District’s Lott case (i.e., convictions for both Reckless Driving causing serious injury and DWLS causing serious injury) as well as the Fourth District’s Anguille case (i.e., DUI causing serious injury and Reckless Driving causing serious injury) and the Second District’s earlier Kelly case (i.e., DUI with serious bodily injury and Driving without a Valid License with serious bodily injury). Accordingly, as previously stated, the undersigned author believes that Lott and Anguille were correctly decided, and Kelly and Marsh were incorrectly decided.

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B. Due Process Goodman v. State, 229 So.3d 366 (Fla. 4th DCA July 26, 2017): In this DUI Manslaughter appeal that arose after a re-trial, the Defendant contended that his due process rights were violated when the State prematurely released his Bentley prior to the re-trial, despite knowing that it was significant and material to his defense. The Court rejected this argument, finding that (1) the State did not act in bad faith in releasing the vehicle, and (2) the vehicle constituted only “potentially useful evidence,” rather than “materially exculpatory evidence” (which is what is required when addressing claims of lost or unpreserved evidence). The Court explained: “On appeal, appellant essentially argues that had his expert been able to further examine the Bentley, he would have been able to complete additional testing that might have lent additional support to the expert’s testimony that the brakes malfunctioned before the accident. However, the mere possibility that the testimony would have bolstered the expert’s opinion does not rise to the level of ‘constitutional materiality.’ ” 229 So.3d at 375. G. Discovery/Richardson Issues Kidder v. State, 117 So.3d 1166 (Fla. 2d DCA 2013): In DUI Manslaughter case, law enforcement requested EMS to draw blood and sent samples to FDLE. FDLE analyzed one sample and defendant had judge order that second sample be sent to private toxicology laboratory to have it analyzed. State then moved to compel defense to provide the results of that testing pursuant to the defendant’s reciprocal discovery obligations pursuant to Rule 3.220(d)(1)(B)(ii) and that such were not work product pursuant to Rule 3.220(g)(1). Trial court granted the State’s motion and Appellate Court affirmed finding that since the defendant elected to participate in discovery, defense was required to produce the results as reciprocal discovery, that the results were not work product, and not protected by the Fifth or Sixth Amendments.

H. Speedy Trial Issues Kehn v. State, 44 So.3d 640 (Fla. 5th DCA 2010): Reinstatement of DUI charge after defendant successfully moved to withdraw guilty plea did not subject defendant to double jeopardy; further, the delay in prosecution resulting from successful withdrawal of plea was not chargeable against the State for speedy trial purposes. Compare this result to the result in Kirchhof v. State, 75 So.3d 402 (Fla. 5th DCA 2011), which is addressed at page 126 of this Update. Bonilla v. State, 62 So.3d 1233 (Fla. 5th DCA 2011): Citing Nesworthy v. State, 648 So.2d 259 (Fla. 5th DCA 1994), Court held that felony charge of DUI causing serious bodily injury was subject to speedy trial time limits for felonies, even though State had nolle prosequied misdemeanor charge that arose out of same accident and filed felony information after expiration of shorter speedy trial time limit for misdemeanor. In footnote, Court indicated that result would have been different if case involved Felony DUI (based on prior convictions), citing State v. Woodruff, 676 So.2d 975 (Fla. 1996). Woodberry v. State, 110 So.3d 17 (Fla. 2d DCA 2013): Defendant was originally charged with Felony DUI due to his two prior convictions. He moved to dismiss the felony due to the priors being uncounseled. The State did not contest the motion and the judge dismissed it and left it on his trial docket. The State filed the misdemeanor the same day the felony was dismissed.

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Defense filed Motion for Discharge due to speedy trial which was denied. The Appellate Court upheld the denial of discharge holding that the Circuit Court properly maintained jurisdiction over the lesser-included misdemeanor offense. The Court also held that the case was filed within speedy trial in that when a felony and misdemeanor are consolidated for disposition in Circuit Court, the misdemeanor shall be governed by the same time period applicable to the felony. The Court also noted how the defense filed his Motion to Dismiss the felony 89 days after the arrest, one day short of the misdemeanor speedy trial period. State v. S.A., 133 So.3d 506 (Fla. 2014): Although this is not a DUI case (in fact it is a juvenile case), it is relevant to the topic of speedy trial. Here, the Florida Supreme Court settled a conflict between the Fourth District Court of Appeal’s decision in State S.A., 96 So.3d 1133 (Fla. 4th DCA 2012) and the Fifth District Court of Appeal’s decision in State v. McFarland, 747 So.2d 481 (Fla. 5th DCA 2000), rev. denied, 767 So.2d 458 (Fla.2000), regarding how the speedy trial rule's recapture window should be calculated. Based on the plain language of the speedy trial rule (both the adult rule and the juvenile rule), the Court approved the Fifth District's decision in McFarland calculating the recapture window as two separate 5- and 10-day time periods and quashed the Fourth District's decision in S.A. which had calculated the window as a single 15-day period. The Court noted that the speedy trial rule plainly provides for a recapture window that is comprised of up to 5 days for the hearing followed by 10 days for the trial and that neither the adult rule nor the juvenile rule ever mentions a 15-day period. See Fla. R. Juv. P. 8.090(m)(3); Fla. R.Crim. P. 3.191(p)(3). And as noted by the Court, under the computation of time rule (Fla. R. Jud. Admin. 2.514(a)(3)), intervening weekends and legal holidays are excluded in calculating the deadline for the 5-day hearing. Accordingly, where the hearing on the notice of expiration was held one week after the notice was filed, it was heard within “5 days” as calculated under the pertinent rules. And when the trial was set an additional 10 days later, the speedy trial rule was not violated – notwithstanding that a total of 17 days had expired between the notice and the trial date. State v. Wilson, 164 So.3d 129 (Fla. 1st DCA 2015): This, again, is not a DUI case but it reiterates some basic speedy trial concepts that prosecutors can utilize in their DUI cases. As the Court explained:

Before granting a State-charged continuance to a date beyond the recapture window, a court should consider three principles. First, a defense-moved continuance should not be charged to the State unless the State has violated a rule. State v. Naveira, 873 So.2d 300, 309 (Fla.2004) (holding that when the State filed charges and produced all its discovery on the last day of the speedy trial period, the fact that the defendant needed more than fifteen days to use the discovery did not justify charging a continuance to the State). Second, if any remedy will “provide relief to the defendant and permit the State to move forward with its case within the speedy trial and recapture periods provided by the rules,” the trial court must select it. State v. Valdez, 44 So.3d 184, 187 (Fla. 2d DCA 2010); see also Pura v. State, 789 So.2d 436, 440 (Fla. 5th DCA 2001) (holding that lesser sanctions must be used to avoid punishing the

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public); cf. Richardson v. State, 246 So.2d 771, 774 (Fla.1971) (noting that the court's sanction authority is not “intended to furnish a defendant with a procedural device to escape justice”). Third, a defendant seeking to take advantage of the speedy trial rule must have acted “in a manner consistent with a desire to secure [a] speedy trial,” and not simply a speedy discharge. Valdez, 44 So.3d at 186; see McKenney v. State, 967 So.2d 951, 953 (Fla. 3d DCA 2007) (recognizing that a continuance is partially chargeable to both sides when it is necessitated by State discovery violations that could have been corrected earlier upon a proper motion by the defense); State v. Gilliam, 884 So.2d 128, 130 (Fla. 2d DCA 2004) (holding a speedy trial discharge improper where the defense would not have been ready for trial regardless of the discovery violations). Application of these principles strikes the proper balance between the defendant's discovery rights and the public's interest in the prosecution of criminal cases, while also ensuring that the State's discovery violations, and not gamesmanship, are truly the reason the defendant has not received a trial within the speedy trial limits provided under Rule 3.191. Here, the record supports the majority of the court's findings of discovery violations by the State. It does not, however, sufficiently support the court's decision to cure these violations with a State-charged continuance to a date beyond the recapture window.

164 So.3d at 130-131. (Emphasis added). State v. Myers, 184 So.23 1149 (Fla. 2d DCA 2015): In this case, the issue was whether the felony, rather than the misdemeanor, speedy trial period applied to the defendant’s charge of felony DUI. Unlike prior cases where a misdemeanor DUI had been charged in county court, here the defendant was never charged in county court. Although a citation had been filed in county court, it reflected the defendant’s three prior DUIs. According to the Court, this indicated that the officer knew this was a felony, and the Court found it significant that the only Information filed was in circuit court. The Court concluded that “[t]he felony here was always a felony,” and reversed the trial court’s speedy trial discharge on the felony DUI. State v. Fair, 213 So.3d 1098 (Fla. 4th DCA 2017): In this case, following an accident involving the defendant’s vehicle, police officers conducted a DUI investigation and also located a bag containing a white powdery substance which they believed to be cocaine. The defendant was ultimately arrested for possession of cocaine, DUI, resisting arrest without violence, possession of drug paraphernalia, and culpable negligence. The State subsequently filed a “no information” as to the possession of cocaine and drug paraphernalia charges and transferred the remaining misdemeanor counts to county court. The white powder was later tested by the Broward Sheriff’s Office crime lab and determined to be PVP. Based upon the result of that test, and over 175 days after the defendant’s arrest, the State filed a new case charging the defendant with one count of possession of PVP. The defendant moved to be discharged, arguing that the charge for possession of PVP was filed outside the speedy trial time limits established by Florida Rule of Criminal Procedure 3.191. The State argued that the defendant waived her right to a speedy trial by requesting, and receiving, multiple continuances in the transferred misdemeanor

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case. The trial court rejected the State’s argument and discharged the defendant based on its conclusion that the PVP charge was filed after the speedy trial period had expired. On appeal, the Fourth District Court of Appeal affirmed. The Court explained:

. . . [B]ased upon the facts of this case, we disagree that the continuance sought in the misdemeanor action constituted a waiver in the felony action. The waiver of her speedy trial rights in the misdemeanor case can only be attributed to waiver in the felony case if the crimes are part of the “same criminal conduct” and “[c]rimes are deemed to be part of the same criminal conduct so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences.” State v. Baynham, 72 So.3d 796, 798 (Fla. 4th DCA 2011) (citing Clevenger v. State, 967 So.2d 1039, 1041 (Fla. 5th DCA 2007)) . . . . We have explained that the fact that the crimes are committed at or near the same time is not dispositive “unless [the crimes] are based on substantially the same acts.” Id. (citing State v. Hanna, 858 So.2d 1248, 1250 (Fla. 5th DCA 2003)). In other words, the criminal conduct must be more than related; it must be the same conduct. Id. (citing Walker v. State, 390 So.2d 411, 412 (Fla. 4th DCA 1980)). * * * * * [W]e conclude that the charge for possession of PVP did not arise from the same conduct or criminal episode as the DUI charge. Therefore, the waiver of speedy trial in the misdemeanor DUI action cannot be attributed to the defendant in the felony possession of PVP action. Because the waiver cannot be attributed to the defendant with regard to the felony charge and because the charge for possession of PVP was filed outside the 175–day speedy trial period, the court correctly granted the motion to discharge and the discharge order is affirmed.

213 So.3d at 1101-02. K. Improper Closing Argument McCoskey v. State, 76 So.3d 1012 (Fla. 1st DCA 2011): In this case, the State filed a motion in limine seeking to prevent the DUI defendant from arguing that he had no intention to operate his car on the night of his arrest. Specifically, the State sought to preclude any testimony “concerning the defendant contacting other people for him to get a ride home, that this was a usual arrangement, and/or that he was just waiting in the car until his ride came. . .” The trial court denied the motion but on appeal by the State, the circuit court reversed. The defendant then sought review by petition for writ of certiorari. However, the First District Court of Appeal upheld the circuit court’s ruling, specifically rejecting the defendant’s contention that he could argue to a jury that he had no intent to drive. As the Court explained:

Although Florida law guarantees a defendant the right to argue his theory of defense, a

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defendant may do so only so long as the “theory is valid under Florida law.” Peterson v. State, Peterson v. State, 24 So.3d 686, 690 (Fla. 2d DCA 2009). Here, Petitioner sought to present evidence that he did not commit DUI because he did not have the intent to operate a vehicle. Intent to operate a motor vehicle is not an element of the charge of DUI, nor is lack of intent to operate a motor vehicle a legally cognizable defense to DUI. See § 316.193, Fla. Stat. (2010). Moreover, the evidence Petitioner sought to admit (that he had called for a ride and was waiting, in his car with the radio on, for that ride at the time of his arrest) is irrelevant to whether or not petitioner committed DUI – specifically, the “actual physical control” requirement. See § 90.401, Fla. Stat. (2010) (defining relevant evidence as “evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings”). Evidence of Petitioner's alleged lack of intent to drive would not operate to prove or disprove whether the petitioner was in “actual physical control” of his vehicle. In fact, such irrelevant speculation regarding the Petitioner's subjective intentions would only serve to do one of three things: (1) confuse the jury; (2) lead the jury to believe that “intent” is an element of the crime of DUI; and/or (3) create sympathy for the petitioner, possibly resulting in a jury pardon.

76 So.3d at 1014.

M. Evidentiary Issues Law v. State, 40 So.3d 857 (Fla. 4th DCA 2010): Admission of BOLO to which police were responding when stopping defendant was not an abuse of discretion in DUI and DWLS case where officers referred to it as part of logical sequence of events; also, error in failing to redact defendant’s driving record was harmless because central issue was whether defendant was driving vehicle and State never mentioned the F & E conviction which defendant moved to redact. Francis v. State, 47 So.3d 366 (Fla. 4th DCA 2010): Court held that testimony from the officer that the defendant’s name and date of birth on the driving record matched the defendant was sufficient to admit driving record, citing section 322.201. Hayward v. State, 59 So.3d 303 (Fla. 2d DCA 2011): Court held, by 2 to 1 majority, that defendant’s explanation for refusing the breath test that “I’ve heard from people, and I’ve seen breath tests go wrong” did not open the door to cross examination about prior DUI case where defendant did take breath test and results were used against him. Barcomb v. State, 68 So.3d 412 (Fla. 4th DCA 2011): Although this is a not a DUI case, it involves an alleged prior conviction for felony DUI and is useful to address the prerequisites for impeaching a witness with a prior felony conviction. Specifically, the prosecutor here was allowed to ask the defendant if he had been convicted of a felony solely on the basis of an NCIC report showing a 1996 conviction in New York for DUI for which the defendant had received five years of probation. The Fourth District Court of Appeal found this to be reversible error. The Court recognized that some cases, such as Miller v. State, 605 So.2d 492 (Fla. 3d DCA 1992) and Peterson v. State, 645 So.2d 10 (Fla. 4th DCA 1994), have crafted a “good faith” exception

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to the rule where records of prior convictions may be non-existent or exceptionally difficult, if not impossible, to obtain. However, here the prosecutor obtained the NCIC only on the eve of trial and did not notify defense counsel of her intent to use it until after the trial had started. Moreover, the prosecutor never even attempted to secure a certified copy of the conviction, as in Miller, nor did she did not have an affidavit from New York attesting to the accuracy of the report, as in Peterson. Peterson v. State, 129 So.3d 451 (Fla. 2d DCA 2014): Air bag control system (which, according to the Court, is often referred to as the “black box” or “event data recorder”) from defendant's vehicle was not testimonial in nature, and thus Confrontation Clause did not bar its admission into evidence in prosecution for leaving the scene of a crash involving death, vehicular homicide, and driving while license is suspended or revoked. Report was not accusatory and did not describe any specific wrongdoing by defendant, but merely established the existence or absence of objective facts – specifically, if and when the brakes were applied in the vehicle before the accident and the speed the vehicle was traveling. Montes-Valeton v. State, 141 So.3d 204 (Fla. 3d DCA 2014), reversed on other grounds, 216 So.3d 475 (Fla. 2017): This case involved an appeal from the denial of a motion to suppress a blood test result. On appeal, defendant argued, among other things, that the trial court erred by admitting the blood test results because the State failed to present evidence that the blood was drawn by a qualified person pursuant to section 316.1933(2)(a). However, at the trial level, defense counsel did not raise this specific objection, stating only that the admission of the blood evidence was based on an “improper predicate.” The Third District Court appeal agreed with Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999), and Filan v. State, 768 So.2d 1100, 1101–02 (Fla. 4th DCA 2000) that such an objection does not preserve the alleged error for appeal. The Court explained:

. . . Because section 316.1933 includes many requirements, the lack of specificity did not put the trial court or the State on notice as to the grounds for the objection to enable the trial court to make an “informed decision” or for the State to cure the alleged defects. Although defense counsel did eventually specify the grounds for his objection when he later moved for a judgment of acquittal, his argument came too late, as the evidence had already been admitted. The purpose of a motion for judgment of acquittal “is to test the legal sufficiency of the evidence presented by the State,” Hernandez v. State, 117 So.3d 778, 785 (Fla. 3d DCA 2013), not to object to evidence that was already admitted.

141 So.3d at 206-07. (Emphasis added). Thus, this case (and the cases cited therein) should be utilized to prevent defense attorneys from forcing prosecutors to guess at what deficiency is contained in its presentation of evidence pursuant to implied consent predicates when an objection of “improper predicate” (or similar objection) is raised. Martinez v. State, 265 So.3d 704 (Fla. 4th DCA Feb. 27, 2019): Defendant’s repeated statements and references to President Trump (including: “I love you Trump. Hey I love you, Trump. Yeah, let's go deer hunting, b****”; “Hey, you know how much of my Mexican people are making money because of this s*** right here?”; “Talk to your daddy, talk to your daddy Trump”) made at the time of arrest for DUI and resisting arrest with violence were relevant to

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show defendant’s state of mind. Additionally, Court rejected defendant’s argument that such references to President Trump gave “rise to strong emotional reactions” and were therefore unduly prejudicial.” Court stated: “Even assuming Martinez is correct about the President eliciting an emotional reaction—a statement we neither agree nor disagree with—he fails to explain how the mere reference to an elected official renders that evidence unduly prejudicial.” 265 So.3d at 706. S. Felony DWLS as H.O. (new topic) State v. Wyrick, 50 So.3d 674 (Fla. 5th DCA 2010): Although this is not a DUI case, it could still be important to DUI prosecutors. It deals with the question of whether a person can be charged with Felony DWLS if the person is driving on a license which was revoked for five years as a Habitual Traffic Offender. The 2008 amendments to section 322.34(10) created some exceptions which effectively converted the charge to a misdemeanor in certain circumstances. The exceptions had caused considerable confusion on when a felony charge is applicable. In Wyrick, the Fifth District ruled that the exception under 322.34(10)(a)(6) for "having been designated a habitual traffic offender under s. 322.264(1)(d) as a result of suspensions of his or her driver's license or driver privilege for any underlying violation listed in subparagraphs 1. - 5." (relating to financial obligations) applies only if all three underlying violations utilized to designate the person an HTO would have fallen within (10)(a)1.-5. That is, the Court found that the exception applies only if the HTO designation came about "solely as a result of the underlying defaulted financial responsibilities." (Emphasis added) Because one of the three underlying violations in the instant case was for a DUI, the Fifth District found that the Defendant was properly charged with a third degree felony. T. Statute of Limitations (new topic) Kirchhof v. State, 75 So.3d 402 (Fla. 5th DCA 2011): Here, the defendant successfully moved to withdraw his misdemeanor DUI plea in 2004, and the State later decided to re-file the charge as a felony DUI – but not until 2010. Because the felony information was filed well beyond the limitations period, which had expired in 2007, the trial court dismissed the information. On appeal, The Fifth District Court of Appeal agreed with the trial court. The Court acknowledged that by setting aside the original misdemeanor plea, the information charging misdemeanor DUI was revived, and that this would have made the commencement of a misdemeanor DUI prosecution fall within the statute of limitations period. However, the Court found a different result was required when the State re-filed the charge as felony DUI. Specifically, the Court stated that felony DUI is a separate crime from misdemeanor DUI, requiring proof of an additional element, citing State v. Woodruff, 676 So.2d 975, 977 (Fla.1996). Accordingly, because the defendant was never charged with felony DUI in the initial proceeding and was subsequently charged beyond the limitations period, the Court held that the trial court properly dismissed the information.

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U. Trial Court Jurisdiction after Notice of Appeal is Filed (New Topic) McInerney v. State, 213 So.3d 933 (Fla. 4th DCA 2017): In this DUI Manslaughter case, the Fourth DCA agreed with the defendant that the trial court acted without jurisdiction when it held a hearing to determine a restitution amount after the defendant filed his notice of appeal. The Court noted that if a trial court reserves jurisdiction at sentencing, it may determine the amount of restitution even years after the date of sentencing, citing White v. State, 190 So.3d 99, 101 (Fla. 4th DCA 2015). However, the Court also stated that “[w]here a trial court reserves jurisdiction to determine a restitution amount at a later time and the defendant files a notice of appeal in the interim, the trial court is divested of jurisdiction over the issue while the appeal is pending.” 213 So.3d at 935-36, citing White, supra, quoting Marro v. State, 803 So.2d 906, 907 (Fla. 4th DCA 2002). The Court noted that in this case, the trial court ordered restitution and reserved jurisdiction to determine the amount. But it waited until after the defendant filed his notice of appeal to hold the hearing. By that time, the trial court had been divested of jurisdiction. Although the Court reversed and remanded the case back to the trial court, the Court also stated that the trial court may impose restitution following a new hearing on the amount. V. Is a search warrant required to downloaded data from the “event data recorder” or “black box” located in an impounded vehicle? State v. Warsham, 227 So.3d 602 (Fla. 4th DCA 2017): In this DUI Manslaughter/Vehicular Homicide case, the defendant’s vehicle was impounded after the crash. Twelve days later, law enforcement downloaded the information retained on the vehicle’s event data recorder (or “black box”) without first applying for a search warrant. The defendant moved to suppress the downloaded information, arguing the police could not access this data without first obtaining his consent or a search warrant. The state defended the search on the sole ground that the defendant had no privacy interest in the downloaded information, so that no Fourth Amendment search occurred. The trial court granted the motion and the State appealed. On appeal, the majority opinion affirmed. The majority’s opinion can best be summarized in the following passage:

A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices. See Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (requiring warrant to search cell phone seized incident to arrest); Smallwood, 113 So.3d 724 (requiring warrant to search cell phone in search incident to arrest); State v. K.C., 207 So.3d 951 (requiring warrant to search an “abandoned” but locked cell phone).

227 So.3d at 604.

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The dissenting opinion saw it differently, concluding as follows:

The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicle’s manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from [United States v.] Jones, [565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)], the purpose of the data collection is highway and driver safety. See New York v. Class, 475 U.S. 106, 113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (“[A]utomobiles are justifiably the subject of pervasive regulation by the State [and e]very operator of a motor vehicle must expect the State, in enforcing its regulations, will intrude to some extent upon that operator’s privacy.”).

Id. at 611-12.