Opinion
Case No. 4D00-1266.
Opinion filed June 20, 2001.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack H. Cook, Judge; L.T. Case No. 98-12384CFA02.
Jack A. Fleischman of Fleischman Fleischman, P.A., Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Bart Schneider, Assistant Attorney General, West Palm Beach, for appellee.
Following a jury trial, appellant was convicted of DUI Manslaughter, DUI with serious bodily injury to another, and two counts of driving under the influence resulting in property damage. He appeals the trial court's denial of his motion in limine to exclude the results of blood tests. We find that his arguments have merit, and reverse.
The charges against appellant resulted from an accident in which his vehicle drifted over the center line on the Florida Turnpike into the vehicle occupied by the Bell family. The Bell family's vehicle, which was parked on the side of the turnpike, was thrown across the turnpike into the barrier. Two of the passengers in the Bells' vehicle were injured; a third was killed. Appellant was extracted from his vehicle and transported to the hospital. A paramedic accompanied appellant in the back of the ambulance. During the ride, appellant mentioned that he had had either two or three, or three or four beers. A Florida Highway Patrol traffic homicide investigator met appellant at the hospital and, at her request, a nurse drew appellant's blood for testing.
Prior to trial, appellant filed a motion in limine seeking to exclude the blood and the results of the analysis performed on the blood. He argued that the process by which the blood was drawn and preserved was not one which insured the integrity of the sample but, rather, was one which compromised the reliability of the results obtained. Appellant maintained that, if the state could not prove the test to be scientifically reliable, then the results should not be admitted.
At the hearing on the motion in limine, F. Thomas Carroll (Carroll), a forensic toxicologist at the Palm Beach County Sheriff's Office's crime laboratory, discussed the effects of having an anti-coagulant mixed in with the blood sample, and explained that the only way the anti-coagulant could affect the reliability of the testing is if there is none at all in the vial. On cross-examination, Carroll admitted that he was not at the hospital when the blood was drawn and had no way of knowing the reliability of the test. He assumed an anti-coagulant had been introduced because the blood was not clotted. The court denied the motion in limine stating only that "the record speaks for itself."
Prior to trial, defense counsel also objected to a late witness being added to the state's list. The state sought to have the nurse's supervisor, Ms. Nevels, testify that the nurse who drew appellant's blood was certified to draw the blood, and also to verify the nurse's signature on the Implied Consent form. The form had been filled out by the state trooper and signed by the nurse when he drew appellant's blood. Defense counsel argued that because Ms. Nevels was not the person who had drawn appellant's blood, she was an improper person through whom to introduce the blood test results. The court denied the request to exclude the supervisor's testimony.
At trial, trooper Kelly Hildreth Bagnardi (Bagnardi), a traffic homicide investigator with the Florida Highway patrol, testified that she met appellant's ambulance at the hospital, and requested that a nurse draw his blood. Bagnardi identified the blood kit which she had taken to the hospital and which was ultimately used to draw appellant's blood. She stated that it is her practice to initial the stickers which go on the vials of blood, and to have the nurse or paramedic who actually draws the blood place his or her initials on the package as well. Bagnardi observed appellant's blood being drawn that night, and then took the vials of his blood and initialed the stickers. She had the nurse, Donald Cook, initial the stickers as well, and then placed the vials in a bag and sealed the bag. Bagnardi delivered the bag to Corporal Ratliff who was at the scene of the accident.
Mary Nevels (Nevels), Mr. Cook's supervisor, testified that he is authorized to draw blood and that, over the past ten years of supervising him, Nevels has seen his signature many times. She then identified Mr. Cook's signature on the Implied Consent form and verified his initials on the labels affixed to the vials of blood. Nevels admitted that she was not present when the blood was drawn, and could not testify as to the procedures which were followed in drawing appellant's blood, or the reliability of the samples.
Over defense objections, the forensic toxicologist, Carroll, testified at trial that he received a sealed bag containing the vials of appellant's blood, and tested the samples to determine the blood alcohol level. He stated that none of the substances which were put into the blood for testing would affect the blood alcohol level. Carroll testified as to the method he used to test the blood samples, and stated that he calibrated the gas chromatograph machine and insured it was functioning properly before performing the tests.
Carroll testified that the blood alcohol level in appellant's blood was .09. He explained the physiological process by which a human body absorbs alcohol into the bloodstream, as well as the various blood alcohol levels at which a person's brain becomes affected. He told the jury that, at a level of .09, an individual's eyesight would be impaired and his motor skills might be affected. Considering the rate that alcohol is eliminated from the body, Carroll opined that appellant's blood alcohol level at the time of the accident was probably .12, and that appellant probably consumed at least eight beers. According to Carroll, a person with such a blood alcohol level would have a loss of mental acuity, a decrease in good judgment, and a decrease in distance perception, but no noticeable intoxication or loss of motor skills.
Appellant raises two issues on appeal, both of which challenge the admissibility of the blood test results. First, he argues that it was error to admit the blood test results and to instruct the jury on the presumption of impairment because the state did not prove the scientific reliability of the tests. Second, he argues that Nevels was an improper party through whom to introduce the test results. He maintains that since Nevels was not present when the blood was drawn, her testimony was based on hearsay and, further, he was not able to cross examine her on the reliability of the blood samples.
With regard to the first issue, the law in this state provides that anyone who operates a motor vehicle is deemed to have consented to submit to appropriate testing to determine his blood alcohol content. See § 316. 1932, 316. 1933, Fla. Stat. (2000) (the Implied Consent Statute). The results of those tests are admissible into evidence, and give rise to the presumption that (1) the person was not under the influence of alcohol if the blood/alcohol level is less than .05, or (2) the person was under the influence of alcohol if the blood/alcohol level is greater than .08. See § 316. 1934(2)(a),(c), Fla. Stat. (2000). If the blood/alcohol level is between .05 and .08, no presumption of impairment arises, but the test may be considered along with other competent evidence to determine the level of the defendant's impairment at the time of the accident. See § 316. 1934(b), Fla. Stat. (2000).
The legislature delegated to the Florida Department of Law Enforcement (FDLE) the task of formulating and approving the process by which a person's blood is analyzed. See § 316. 1933(2)(b), Fla. Stat. (2000). Compliance with the administrative rules is essential because the presumption of impairment is entirely contingent on the integrity of the process. See State v. Bender, 382 So.2d 697, 699-700 (Fla. 1980), limited by, Robertson v. State, 604 So.2d 783 (Fla. 1992).
The issue of the adequacy of the FDLE's rules and procedures was not considered until it was raised in State v. Miles, 732 So.2d 350 (Fla. 1st DCA 1999) (Miles I), approved in part and quashed in part, 775 So.2d 950 (Fla. 2000) (Miles II). In that case, the defendant was involved in an accident which resulted in the death of the person in the other car. Miles II, 775 So.2d at 951. At the scene, against the defendant's will, he was required to submit to a blood draw. Id. He was later charged with several offenses resulting from his driving while under the influence of alcohol. Id. In the trial court, Miles filed a motion to suppress, or in the alternative, a motion in limine, to exclude the test results. Id. He argued that the FDLE's procedures governing the testing of blood samples were insufficient and did not adequately provide for the proper preservation of blood samples. Id.
After considering testimony from experts on both sides concerning the undisputed need to refrigerate the samples, the need for a preservative and the need for an anticoagulant, the trial court denied Miles' motion.Id. The court ruled, however, that because of the statute's (§ 316. 1933, Fla. Stat. (1995)) failure to provide for preservation, and the deficiency of the rule ( 11D-8.012, Fla. Admin. Code) in protecting the integrity of the process, the State would not, at trial, be entitled to the presumption of impairment provided for in section 316. 1934(2)(c), Florida Statutes (1995). Id. The trial court ruled, instead, "that the State would be permitted to present the results of its testing of the blood sample, and the parties would be allowed to establish the circumstances surrounding the preservation, storage, and transportation of samples drawn according to Robertson v. State, 604 So.2d 783 (Fla. 1992)." Id., n1. The jury would then resolve any disputed issues.
The trial court further found that the FDLE rule was inadequate in that it failed to provide for a process of collecting, storing, and transporting the samples between the date the blood is drawn and the date of the analysis. Miles II, 775 So.2d at 952. As a result, according to the trial court, the rule failed to set forth satisfactory techniques to ensure a reliable analysis. Id. On review, the First District affirmed the trial court's finding that rule 11D-8.012 did not comply with Bender and, therefore, did not give rise to the statutory presumptions. Miles I, 732 So.2d at 353.
In Miles II, the Supreme Court agreed that the FDLE's rules governing blood testing were inadequate in that they did not provide for preservation of the sample pending testing. Miles II, 775 So.2d at 952. The court referred to the testimony of the experts that some form of anticoagulant, preservative, and refrigeration are essential to preserve the integrity of the blood. Id. Because there had been fourteen days between the blood draw and the testing, and there was no assurance that the samples had been properly preserved, the Supreme Court also agreed that the State should not be entitled to the statutory presumptions of impairment. Id. at 953.
The certified question in Miles II was whether, notwithstanding the absence of compliance with the Implied Consent Statute, the State could still benefit from the statutory presumptions by, alternatively, going through the three-prong predicate of Robertson. Miles II, 775 So.2d at 953. The Supreme Court answered that question in the negative, explaining that the Implied Consent Law was established to ensure the reliability of the testing. Id. at 954. Only when the Implied Consent Law has not been complied with does the common law approach discussed in Robertson come into play. Id. At that point, the blood/alcohol test results are admissible into evidence only if the State (1) proves that the blood was drawn by a person authorized to do so by the Implied Consent Statute and (2) meets the three-prong test. Id. at 953-54. Even if the State meets this more difficult burden and the tests are admitted, the statutory presumptions still will not be applicable. Id. at 954. The Supreme Court held that "the common law approach (the three-prong predicate) and the presumptions are mutually exclusive to the extent that the presumptions are specifically contingent upon compliance with the mandate for quality assurance of the implied consent law." Id.
In Robertson, it was held that in order to admit test results, it must be established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment, and (3) expert testimony was presented concerning the meaning of the test. See Robertson, 604 So.2d at 789 (citing Bender, 382 So.2d at 699).
In this case, the State argues that there was no error because the trial court ultimately did not instruct the jury on the statutory presumptions of impairment, and because the prosecutor laid an adequate foundation for the admissibility of the blood test results through the traditional predicate.
The trial court instructed the jury as follows:
Before you can find the defendant guilty of DUI, the State must prove the following two elements beyond a reasonable doubt:
First, Gregory S. Dodge was . . . drove or was in actual physical control of a vehicle.
Second, while driving or in actual physical control of the vehicle, Gregory S. Dodge was under the influence of alcoholic beverages to the extent his normal faculties were impaired, or had a blood alcohol level of point — of 0.08 or higher.
(emphasis added). Thus, even though the trial court did not specifically state that a blood/alcohol level of .08 gives rise to a presumption of impairment, the instruction clearly gives the impression that if appellant's blood/alcohol level was .08 or higher, his normal faculties were impaired. Since the State did, indeed, have the benefit of the statutory presumption of impairment in this case, we turn now to the issue of whether the Implied Consent Law was complied with.
The language of the version of Administrative Rule 11D-8.012(3) that was in effect at the time that appellant's blood was drawn and tested was the same as that considered by the Supreme Court in Miles II and determined to be insufficient. Thus, as in Miles II, even compliance with the FDLE rule would not have been enough to ensure reliability; therefore, the State was not entitled to the benefit of the statutory presumption of impairment. Because the Implied Consent Law was not complied with, yet the trial court still instructed the jury on the presumption of impairment, we hold that appellant's conviction should be reversed and the matter remanded for a new trial.
The state admits in its Answer Brief that the blood alcohol results were not admitted into evidence pursuant to the Implied Consent Law.
On re-trial, assuming the state can meet the three-prong test established in Bender and Robertson, the blood test results will be admissible and may be considered along with any other evidence tending to show that appellant was impaired. The court may not, however, instruct the jury on the presumption of impairment.
For the benefit of the trial court on remand, we also address appellant's second issue, and hold that is it was error to allow the blood samples into evidence through Nevels, the supervisor of the nurse who actually drew appellant's blood. Although Nevels may have been qualified, as Cook's supervisor, to testify that he was a registered nurse duly qualified to draw blood, there was no evidence to suggest that Nevels was also qualified to testify that, in drawing the blood, Cook followed all proper procedures. In fact, Nevels specifically testified that she was not present when the blood was drawn.
The State argues that evidence that Cook followed the proper medical procedures in drawing the blood was introduced through the testimony of Officer Bagnardi, who was present when the blood was drawn; however, there was no evidence that the officer was qualified to make such a determination. As such, Nevels was not a proper witness through whom to introduce the two vials of appellant's blood.
Based on the foregoing, we reverse appellant's conviction, and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
DELL and GUNTHER, JJ., concur.