Case Number: 3D13-2167
Judge: Barbara Lagoa
Court: Third District Court of Appeal State of Florida
Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General
Defendant's Attorney: Jeff Weiner
Description: On Sunday, December 9, 2007, at approximately 3:00 a.m., a three-car
accident occurred in the four westbound lanes of State Road 836 near the 27th
Avenue exit. At approximately 3:11 a.m., Florida Highway Patrol Trooper
Bobadilla (“Trooper Bobadilla”) received a dispatch regarding this accident.
When he arrived at the scene, Miami Dade Expressway Authority (“MDX”) Road
Rangers had closed all but the far-left lane in order to allow law enforcement, fire
rescue units, and tow trucks to safely operate and clear the accident scene. A
board with an arrow pointing left was set up to notify drivers of the lane closures.
After investigating the scene, Trooper Bobadilla returned to his vehicle,
which had its emergency lights activated. At the same time, at approximately 4:22
a.m., an MDX Road Ranger adjusting traffic cones observed a black Ford
Mustang, driven by Aguilar, and another car racing at a high rate of speed
westbound into the single, open left lane near the scene of the original accident.
Within seconds, Trooper Bobadilla heard screeching tires and witnessed Aguilar
losing control of his Mustang, which careened into the original accident scene,
striking multiple cars and persons—one who died almost instantly, two who
suffered serious bodily injuries, and one who suffered minor injuries. After the
collision, Trooper Bobadilla walked the scene and observed skid marks consistent
with the driving pattern of Aguilar’s Mustang that were not present prior to the
Florida Highway Patrol Trooper Christopher Adkinson (“Trooper
Adkinson”) made contact with Aguilar at the scene of the accident, testifying that
Aguilar “was somewhat unresponsive, incoherent,” had “blood shot watery eyes,”
“slurred speech,” and “had odor of alcohol” coming from his person and his
vehicle. Trooper Adkinson gathered identification information from Aguilar, who
was subsequently extracted from his Mustang by a fire rescue unit and transported
to Ryder Trauma Center at Jackson Memorial Hospital with serious injuries,
including a collapsed lung. Medical personnel at Ryder Trauma Center induced
Aguilar into a coma and intubated him shortly after his arrival.
As there were “significant indicators” that Aguilar was displaying an
“alcohol related impairment,” Trooper Adkinson responded to Ryder Trauma
Center at approximately 5:09 a.m., in order to get a “blood draw.” Trooper
Adkinson testified no effort was made to get a warrant because of “time restraints,”
including waiting for contact with the primary traffic homicide investigator who
would obtain the warrant, and traveling to the hospital. At Ryder Trauma Center,
Trooper Adkinson again smelled an odor of alcohol emanating from Aguilar’s
face, which was “flushed,” and noticed Aguilar’s “bloodshot and watery” eyes.
Soon thereafter, Trooper Adkinson directed a nurse to obtain a nonconsensual
blood sample from Aguilar. The blood sample, taken at 5:42 a.m., showed that
Aguilar’s blood alcohol level was 0.112.
Aguilar was arrested and charged with DUI Manslaughter (Count I), two
counts of DUI causing serious bodily injury (Counts III, IV), and two counts of
DUI with person or property damage (Counts II, V). Aguilar filed several motions
to suppress, including one to suppress the blood draw test results due to a lack of
probable cause and lack of a warrant.
On May 15, 2013, the trial court heard evidence on the suppression motions.
In addition to Trooper Adkinson’s testimony, the State introduced testimony that to
obtain a warrant at the time, it would have taken at least four hours, due to the
information and evidence gathering, the writing of the affidavit, sending that
affidavit to the Assistant State Attorney for verifying probable cause, and then
driving to the emergency judge’s house. The State argued that because of the
natural metabolization of alcohol in the bloodstream, there were time constraints
creating an exigent circumstance to justify an exception to the warrant
requirement. The trial court found this evidence was sufficient to establish
probable cause to order a nonconsensual blood sample from Aguilar and thus
denied the suppression motions.
At trial, Aguilar moved for a judgment of acquittal and direct verdict, which
the trial court denied. Subsequently, the jury returned a guilty verdict as to Counts
I, III, and V. As to Counts II and IV, the jury found Aguilar guilty of the lesser
included offense of DUI. Aguilar was sentenced to fifteen years in state prison as
to Count I, six months in the Dade County Jail as to Counts II and IV, five years in
state prison as to Count III, and 364 days in the Dade County Jail as to Count V.
This appeal followed. II. STANDARD OF REVIEW In reviewing a trial court’s ruling on motions to suppress, “appellate courts
. . . accord a presumption of correctness . . . to the trial court’s determination of
historical facts,” but “independently review [de novo] mixed questions of law and
fact that ultimately determine constitutional issues arising in the context of the
Fourth Amendment.” Connor v. State, 803 So. 2d 598, 605, 608 (Fla. 2001).
II. ANALYSIS We write primarily to address Aguilar’s argument that the warrantless blood
test violated the Fourth Amendment such that his motion to suppress should have
been granted.1 For reasons stated below, we find that the trial court properly
denied Aguilar’s motion to suppress and affirm as Counts I, III, and V, but reverse
as to Counts II and IV due to violations of the prohibition on double jeopardy. A. Admission of Blood Test Results “‘[S]earches conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.’”
Arizona v. Gant, 556 U.S. 332, 338 (2009) (emphasis in original) (footnote
omitted) (quoting Katz v. United States, 389 U.S. 347, 357 (1967) (1967)). “One
well-recognized exception applies when ‘the exigencies of the situation make the
needs of law enforcement so compelling that [a] warrantless search is objectively
reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U.S. 452, 460
1 Counsel for Aguilar conceded at oral argument that Appellant was not arguing or relying on a violation of Florida’s implied consent law. Accordingly, the warrantless blood test was statutorily valid due to Aguilar’s implied consent.
(2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). The Supreme
Court has twice addressed the applicability of this exigency exception to blood
testing in DUI cases.2
In Schmerber v. California, 384 U.S. 757 (1966), a blood test was
administered to the drunk driver despite his objections. Id. at 759. After
concluding the Fourth Amendment applied to DUI blood tests, the Court
considered whether the police officer could make the probable cause determination
or whether it must be made by a magistrate, who, in turn, would issue a warrant for
the blood test. Id. at 767, 770. The Court, however, determined that even if a
warrant from a magistrate was required, an emergency—the delay necessary to
obtain a warrant under the circumstances threatened the destruction of evidence—
existed to excuse the warrantless search. Id. at 770-71. In making this
determination, the Court reasoned that because “the percentage of alcohol in the
blood begins to diminish shortly after drinking stops, as the body functions to
eliminate it from the system,” there was no time to secure a warrant due to the time
to take the accused to a hospital and investigate the accident scene. Id.
Additionally, the Court noted “[t]he police officer who arrived at the scene shortly
after the accident smelled liquor on petitioner’s breath, and testified that
2 The Court has also addressed blood tests under the search incident to arrest exception, Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), but that particular exception is not applicable here.
petitioner’s eyes were ‘bloodshot, watery, sort of a glassy appearance,’” and within
two hours, he again observed the petitioner showing “similar symptoms of
drunkenness” at the hospital. Id. at 768-69. “Given these special facts,” the Court
concluded that “the attempt to secure evidence of blood-alcohol content in this
case was . . . appropriate [due to the emergency].” Id. at 771.
More recently, the Court again addressed warrantless DUI blood tests in
exigent circumstances in Missouri v. McNeely, 569 U.S. 141 (2013). In McNeely,
the Court, in a five-to-four majority opinion, reaffirmed that the natural dissipation
of alcohol in the bloodstream was not a per se exigency, but one factor to consider
in the totality of the circumstances test. Id. at 156, 164-65. The Court noted its
Schmerber decision relied not only on the natural dissipation of alcohol, but also
the delay to secure a warrant after investigating the scene of the accident and
transporting the injured suspect to the hospital. Id. at 150-52. The Court clarified
that in “drunk-driving investigations where police officers can reasonably obtain a
warrant before a blood sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they do so,” but
recognized “that some circumstances will make obtaining a warrant impractical
such that the dissipation of alcohol from the bloodstream will support an exigency
justifying a properly conducted warrantless blood test.” Id. at 1561. 3 Given the nature of DUIs, it will likely be “most” rather than “some.” The instant case, occurring in the early hours of Sunday morning, is instructive.
We further find instructive Goodman v. State, 229 So. 3d 366 (Fla. 4th DCA
2017). In Goodman, the Fourth District Court of Appeal found exigent
circumstances existed to justify a warrantless blood test where: (1) the defendant
“absented himself from the scene [of the accident] for over an hour” but returned;
(2) the defendant went on his own accord to the hospital for treatment before
investigators found the defendant’s vehicle and the victim’s body; (3) “nearly four
hours had passed since the time of the crash” when the investigator reached the
hospital; and (4) “[t]he investigator testified that it would have taken an additional
two hours to obtain a search warrant.” Id. at 381. As the Fourth District noted,
[t]his was not a ‘routine DUI’ once the victim’s body was discovered. Although the Supreme Court noted that ‘the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case,’ the Court clearly signaled that in some cases the destruction of evidence by the natural dissipation of alcohol could constitute an exigent circumstance.
Id. (emphasis in original) (quoting McNeely, 569 U.S. at 165).
Factually, the instant case is akin to Schmerber and not to McNeely.
However, notwithstanding the factual similarities, applying the totality of the
circumstances test makes it clear that the trial court did not err in finding that
exigent circumstances were present to justify a warrantless blood test. Aguilar’s
accident occurred at approximately 4:22 a.m. on a Sunday. The accident was
serious, resulting in the instantaneous death of one pedestrian, and caused serious
bodily injuries to two more pedestrians. The accident occurred at the scene of a
prior accident. Aguilar himself was seriously injured, taken to a hospital for
treatment, and induced into a coma and intubated. At both the accident scene and
later at the hospital, Aguilar smelled of alcohol and exhibited symptoms consistent
with drunkenness. The blood sample was taken at 5:42 a.m., about ninety minutes
after the accident. And 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.4
As such, we find no Fourth Amendment violation and conclude that the trial court
properly denied the motion to suppress.5 4 Although we doubt hindsight applies here, as we are gauging whether the officers were under the reasonable belief that they were acting in an emergency, we note that ninety minutes after the crash, Aguilar’s blood test results showed a BAC of 0.112. Based on the testimony below, a warrant would have taken four hours to obtain. Assuming in the light most favorable to Aguilar that this meant four hours from the accident, it would have taken another two-and-a-half hours after the actual test result time to obtain the warrant, thus allowing Aguilar’s BAC to continue dropping. More likely though, as the testimony suggests, the four hours would have begun running when the homicide detective arrived at the scene at approximately 5:30 a.m., over an hour after the accident. 5 We note that the case of State v. Liles, 191 So. 3d 484, 488–89 (Fla. 5th DCA 2016), review denied, No. SC16-1096, 2016 WL 4245500 (Fla. Aug. 11, 2016), and review denied sub nom., Willis v. State, No. SC16-1118, 2016 WL 4247056 (Fla. Aug. 11, 2016), cert. denied, 137 S. Ct. 688 (2017), is distinguishable from the instant case. In Liles, the Fifth District Court of Appeal declined to uphold warrantless blood searches based on exigent circumstances. Id. However, the appellate court 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. See id. In the instant case, by contrast, the State met its evidentiary burden regarding the existence of exigent circumstances.
B. Double Jeopardy Issue We turn now to address Aguilar’s argument that double jeopardy precludes
his conviction under Counts II and IV. Aguilar was convicted of DUI
Manslaughter (Count I), one count of DUI causing serious bodily injury (Count
III), one count of DUI causing damage to property or person (Count V), and two
counts of DUI (Counts II, IV). Aguilar contends that double jeopardy precludes
his convictions under Counts II and IV. The State concedes that Aguilar is correct.
See Art. I, § 9, Fla. Const. (double jeopardy clause); § 775.021(4)(b)(3), Fla. Stat.
(2007) (codifying that criminals are not to be convicted of “[o]ffenses which are
lesser offenses the statutory elements of which are subsumed by the greater
offense”); Labovick v. State, 958 So. 2d 1065, 1068 (Fla. 4th DCA 2007) (holding
that DUI is a lesser included offense of DUI manslaughter). Accordingly, based on
the State’s proper concession, we direct the trial court to vacate Aguilar’s
convictions for DUI (Counts II and IV).
Outcome: Based on the totality of the circumstances, we affirm Aguilar’s conviction
and sentence for DUI Manslaughter, DUI causing seriously bodily injury, and DUI
causing damage to property or person. We reverse and remand to the trial court
however, to vacate Aguilar’s convictions for DUI. We affirm as to all other issues without discussion.
Affirmed in part, reversed in part.