RECEIVED, 3/9/2016 3:54 PM, Joanne P. Simmons, Fifth District Court of Appeal

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT STATE OF FLORIDA, RECEIVED, 3/9/2016 3:54 PM, Joanne P. Simmons, Fifth District Court of Appeal Appellant/Cross-Appellee, v. WADE F. LILES, Appellee/Cross-Appellant. CASE NO. 5Dl NOTICE OF SUPPLEMENTAL AUTHORITY Appellant/Cross-Appellee State of Florida, by and through the undersigned assistant attorney general, pursuant to Florida Rule of Appellate Procedure 9.225, submits as supplemental authority the following decision, a copy of which is attached to this notice: - State v. Kleiber, 175 So.3d 319 (Fla. 5th DCA 2015) This decision is relevant to the argument of Appellee/Cross Appellant Wade F. Liles that section is not part of Florida's implied consent statute.

2 Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL s/ Kristen L. Davenport KRISTEN L. DAVENPORT ASSISTANT ATTORNEY GENERAL Florida Bar # Seabreeze Boulevard 5th Floor Daytona Beach, FL (386) ( ) ( fax) COUNSEL FOR RESPONDENT CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Notice of Supplemental Authority has been furnished to William R. Ponall, counsel for Appellee/Cross-Appellant, 253 North Orlando Avenue, Suite 201, Maitland, Florida 32751, by to ponallb@criminaldefenselaw.com, this 9th day of March, s/ Kristen L. Davenport Kristen L. Davenport Assistant Attorney General 2

3 State v. Kleiber, 175 So.3d Fla~ L.Weekiy o So.3d 319 District Court of Appeal of Florida,.Fifth District. STATE of Florida, Appellant, v. Stephen Alan J. KLEIBER, Appellee. No. 5D14-292i. I Aug. 21, I Rehearing Denied Sept. 29, Synopsis Background: Following charges for driving under the influence (DUI) manslaughter and with serious bodily injury, defendant moved to exclude the results of his blood alcohol test. The Circuit Court, Sumter County, William H. Hallman, lli, J., granted motion. State appealed. Holdings: The District Court of Appeal, Evandcr, J., held that: [ l] appellate court had jurisdiction to consider appeal, and [2] fact that dry gauze rather than an antiseptic was used to cleanse defendant's arm prior to testing in violation of rule did not mandate suppression of results. Reversed and remanded. West Headnotes (5) [lj Criminal Law Right of Prosecution to Review State had right to appeal trial court's order granting defendant's motion to exclude the results of his blood alcohol test in driving under the influence (DUT) prosecution. West's F.S.A ; West's F.S.A. R.App.P.Rule 9.140(c) (1 )(B). [2] [3] [4] [5] Searches and Seizures Taking samples of blood, or other physical specimens; handwriting exemplars The drawing of blood for the testing of intoxicants constitutes a search under the Fourth Amendment. U.S.C.A. Const.Amend. 4; West's F.S.A Predicate Conduct and Proof of Test; Foundation or Fact that dry gauze rather than an antiseptic was used to cleanse defendant's arm prior to blood alcohol test did not mandate suppression oftest result in driving under the influence (DUI) prosecution, even though rule required area to be cleansed with antiseptic that did not contain alcohol; trial court failed to consider whether the test was still reliable notwithstanding use of gauze, and court should have determined whether there was substantial compliance with rule. West's F.S.A (2)(b); Fla.Admin.Codc Ann. r. l ID 8.012(1), (7). Predicate Conduct and Proof of Test; Foundation or Minor deviations from the rules governing administration of a chemical analysis of a person's blood will not prohibit the test results from being presented in a driving under the influence (DUI) prosecution, as long as there is evidence from which the factfinder can conclude that the test itself remained accurate. West's F.S.A (2)(b); Fla.Admin.Codc Ann. r. lld-8.012(1), (7). Evidence of Sobriety Tests

4 State v. Kleiber, 175 So.3d 319 5) 46F1a: c weekly Even if suppression of a blood alcohol test is required under the statute governing such tests in cases of death or serious bodily injury, the State may seek introduction of the test results based upon the traditional rules of evidence for the admission of scientific results. West's F.S.A. ~ Attorneys and Law Firms *319 Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport and Marjorie Vincent-Tripp, Assistant Attorneys General, Daytona Beach, for Appellant. William R. Ponall, of Snure & Ponall, P.A., Winter Park, and Matthew P. Ferry, of Lindsey & Ferry, P.A., Winter Park, for Appellee. Opinion *320 EVA~DER, I. The State appeals the trial court's order granting Stephen Kleiber's motion in limine to exclude the results of his blood alcohol test based on the State's alleged failure to comply with section , Florida Statutes (2010), and Florida Administrative Code Rule 11D The rule directs that prior to collecting a sample of blood, the skin puncture area is to be cleansed with an antiseptic that does not contain alcohol. In the instant case, the paramedic who drew Kleiber's blood used a dry gauze, rather than an antiseptic, to clean the skin puncture area. Because the trial court incorrectly applied a strict compliance standard in granting Kleiber's motion, we reverse. Kleiber was charged by information with DUI manslaughter, DUI with serious bodily injury, and two counts of DUI causing property damage. At the hearing on Kleiber's motion in limine, both parties relied on proffered evidence and deposition testimony from Trooper Timothy Cramer and Lieutenant Misti Rinaudo. The proffered evidence and deposition testimony reflected that Kleiber was the driver of a vehicle involved in a twocar collision in which an occupant of the other vehicle was killed, and another occupant suffered serious bodily injuries. Trooper Cramer was the accident investigator who arrived on the scene shortly after the crash. After observing the damage on Kleiber's car and smelling alcohol on his breath, Trooper Cramer read Kleiber his Miranda 1 rights and asked if he would submit to a blood test pursuant to Florida's implied consent law. Ultimately, Kleiber consented to the blood draw. The blood kit came from Trooper Cramer's patrol car. The trooper showed Kleiber that the kit was sealed, so as to indicate that it had not been tampered with. Trooper Cramer removed the contents of the kit, which included a needle, two vials for the blood samples, a holder for the vials, and a sealed iodine swab packet. Lieutenant Rinaudo, a firefighter/ paramedic, was the individual who actually drew Kleiber's blood. Typically, once the blood draw is complete, all of the kit's contents go back inside the kit, excluding the used iodine swab. However, the swab's expiration date will be recorded for documentation purposes. In this case, the iodine swab provided in the kit was not used because Kleiber stated that he was allergic to iodine. As a result, Lieutenant Rinaudo retrieved dry, sterilized gauze from a sealed packet and used the gauze to wipe off Kleiber's arm before the needle was inserted. The gauze was then discarded. The vials of drawn blood were placed back in the blood kit and the blood kit was then resealed. The proffered testimony of a Florida Department of Law Enforcement (FDLE) toxicologist and a defense expert were in conflict. It is not necessary to detail the differing opinions in technical terms. It is sufficient to observe that FDLE's toxicologist would opine that the use of a dry gauze rather than an antiseptic would not have undermined the reliability of Klciber's blood test results, and Kleiber's retained expert would have suggested otherwise. In granting the motion, the trial court stated: It's very clear the Administrative Code that it says, "Before collecting a sample of blood, the skin puncture area must be cleansed with an antiseptic that does not contain alcohol." *321 Therefore, with the language that has been placed in the Florida Administrative Code--it has been there for many years--and requires that it must be cleansed. Here, it's not weighing the evidence out. It's very clear that we do not know if it was cleansed with an antiseptic that does not contain alcohol. We're never going to know that. It's not

5 State v. K!eiber, 115 So.3d 319 (2015) 40FTa. L~Weekiyt51944~ here. It wasn't substantially complied with, wasn't strictly complied with. And based on the law and strict-strictly interpreting the law and not allowing any other issues to come in, applying the law to the facts of this particular case, I'm going to grant the defense motion in limine, exclude the blood alcohol test results. [1] [2] Initially, Kleiber argues that we lack jurisdiction to consider the State's appeal. We disagree. Florida Rule of Appellate Procedure 9.140( c )( 1 )(B) grants the State the right to appeal an order "suppressing before trial... evidence obtained by search and seizure." As this court has previously explained, the drawing of blood for the testing of intoxicants constitutes a search under the Fourth Amendment to the United States Constitution. State v. Geiss, 70 So.Jc! 642, 646 (Fla. 5th DCA 2011) (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)); see also State v. Sercey, 825 So.2d 959, (Fla. l st DCA 2002) (holding that appellate court has jurisdiction to review trial court's non-final order suppressing evidence of marijuana in defendant's system because blood specimen upon which expert testimony sought to be excluded was obtained by search and seizure). 13 l By enacting section , the Legislature provided a statutory basis for the admission of blood alcohol test results in criminal trials. State v. St. Pierre, 693 So.2d 102, l 03 (Fla. 5th DCA 1997). Section (2)(b), Florida Statutes (2010), provides that "a chemical analysis of a person's blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approved by [FDLE]." Pursuant to this legislative delegation, FDLE promulgated rule 11 D Section (1) of that rule provides: Before collecting a sample of blood, the skin puncture area must be cleansed with an antiseptic that does not contain alcohol. Fla. Admin. Code R. lld 8.012(1). Kleiber argues that this subsection was not complied with because Lieutenant Rinaudo cleaned the skin puncture area with dry gauze rather than an antiseptic. [4] Under Florida's implied consent statute, "[a]ny insubstantial differences between approved methods or techniques and actual testing procedures,... shall not render the test or test results invalid." (2)(b), Fla. Stat (20 I 0). Thus, minor deviations from the rules will not prohibit the test results from being presented, as long as "there is evidence from which the fact finder can conclude that the [test] itself remained accurate." State v. Donaldwn, 579 So.2d 728, 729 (Fla.1991). In the instant case, the trial court erroneously applied a strict compliance test by concluding that the mere fact that dry gauze, rather than an antiseptic, was used to cleanse Kleiber's arm mandated suppression of the blood test results. The trial court failed to consider whether the blood test would still be reliable notwithstanding the use of dry gauze. See Fla. Admin. Code R. 1 ld 8.012(7) ("Notwithstanding any requirements in Chapter l ld-8, F.A.C., any blood analysis results obtained, if proved to be reliable, shall be acceptable as a valid blood alcohol level."). *322 [5] On remand, the trial court should conduct an evidentiary hearing to detem1ine whether there was substantial compliance with the promulgated rule in question. 2 REVERSED and REMANDED. COHEN, J. and ZAMBRANO, R.A., Associate Judge, concur. AH Citations 175 So.3d319,40Fla. L. WeeklyD1944 Footnotes 1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 2 Even if suppression is required under section , the State may seek introduction of blood alcohol test results based upon the traditional rules of evidence for the admission of scientific results. See Robertson v. State, 604 So.2d 783, (Fla. 1992); St. Pierre, 693 So.2d at 104.