SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA DANIEL L. MURRAY & JAMES L. BRINK, Petitioners, v. District Court Case No. 5D10-1376 STATE OF FLORIDA, Respondent. JURISDICTIONAL BRIEF OF PETITIONERS J. BRIAN PAGE Florida Bar No. 0061499 J. MICHAEL SAWYER Florida Bar No. 0992275 Law Firm of DeCarlis, Sawyer & Alba, PL 5000 NW 27 th Court, Suite C Gainesville, FL 32606 (352) 371-3838/fax (352) 376-3442 Counsel for Petitioner MURRAY

A. TABLE OF CONTENTS A. TABLE OF CONTENTS ii B. TABLE OF CITATIONS iii 1. Cases iii 2. Statutes iv 3. Other Authority iv C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS.. 1 D. SUMMARY OF ARGUMENT 3 E. JURISDICTIONAL STATEMENT.. 4 F. ARGUMENT AND CITATIONS OF AUTHORITY... 4 The decision below expressly and directly conflicts with Chu v. State, 521 So. 2d 330 (Fla. 4 th DCA 1988) and its progeny, concerning whether law enforcement officers are authorized to request voluntary blood draws when the circumstances required under 316.1932 and 316.1933 do not exist and they do not fully inform drivers that Florida law only requires submission to a breath or urine test and a blood test may be requested only as an alternative. G. CONCLUSION.. 10 H. CERTIFICATE OF SERVICE... 11 I. CERTIFICATE OF COMPLIANCE.. 11 Page

B. TABLE OF CITATIONS 1. Cases Page Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988).. ii,2,3,4,5, 6,7,8,9,10 Cooper v. California, 386 U.S. 58,62 (87 S.Ct. 1967 788, 791) 17 l.ed.2d 730 (1967). 3,7 Dep t of Highway Safety and Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007)... 8 Robertson v. State, 604 So.2d 783 (Fla. 1992)... 3,7,8 Sambrine v. State, 386 So.2d 546, 548 (Fla. 1980) 7,9 State v. Dubiel, 958 So.2d 486 (Fla. 4th DCA 2007).. 8 State v. McInnis, 581 So.2d 1370 (Fla. 5th DCA)Cause dismissed, 584 So.2d 998 (Fla. 1991) 7 State v. Langford, 816 So.2d 136, 139 (Fla. 4th DCA 2002).. 7 State v. Slaney, 653 So.2d 422, (Fla.3d DCA 1995). 7 State v. Webb, 753 So.2d 145, (3d DCA 2000)... 8

2. Statutes Page Section 316.1932 Fla. Stat. (2007) ii, 1,4,5,6,7 Section 316.1933 Fla. Stat. (2007) ii, 1,4,5,6,7 3. Other Authority Art. I, 9, Fla. Const. 10 Art. I, 12, Fla. Const. 10 Art. V, 3(b)(3), Fla. Const. 4 Fla. R. App. P. 9.030(a)(2)(A)(iv) 4 U.S. Const. amend IV 10 U.S. Const. amend V 10 U.S. Const. amend XIV 10

C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS. On August 22, 2007, Daniel Murray ( Petitioner Murray ) was charged by information with being a principal to Vehicular Homicide and Driving with a Suspended License. Co-Defendant James Brink ( Brink ), who was driving another vehicle, the one actually involved in the accident, was also charged with Vehicular Homicide. The Florida Highway Patrol officers who responded to the scene testified they did not smell alcohol nor see any other signs of impairment by either Petitioner Murray or Brink. Accordingly, they concluded that no probable cause for DUI existed; and thus, they were unable to request a blood draw under Florida Statute 316.1932 or take an involuntary draw under 316.1933. The troopers then decided to proceed by requesting that Petitioner Murray and Brink submit to a voluntary blood draw. No implied consent warnings were read, nor were Petitioner Murray or Brink made aware of the less invasive breath or urine tests available under Florida s implied consent statutes. Florida Highway Patrol Sergeant Milton Mandell, the commanding officer who responded to the scene, testified that it is their standard operating procedure to request voluntary blood draws in all traffic fatalities if no probable cause or statutory authority is present. While they were told of the potential for criminal charges, the trial court made factual findings that both Petitioner Murray and Brink were not read implied

consent nor were they fully informed of the less invasive methods for obtaining a sample for analysis. On June 19, 2009, Petitioner Murray, joined by Brink, filed his first motion to suppress the blood draw, alleging that his consent was coerced and not voluntary. On September 25, 2009, the trial court entered a lengthy order denying the motion to suppress in which the trial court specifically found that no probable cause existed for an involuntary blood draw, that implied consent was not read to the Petitioners before the blood draw and that Petitioners consent was not coerced. Petitioner Murray subsequently filed a second motion to suppress, asserting that, pursuant to Chu v. State, 521 So. 2d 330 (Fla. 4 th DCA 1988), a blood draw should not have been taken without fully informing the Petitioners of the less invasive breath and urine tests that are available and required by the implied consent statutes. On April 1, 2010, the trial court granted the motion to suppress with written opinion. The trial court found that Chu was applicable to the case, and that Petitioner Murray and Brink should have been informed prior to the blood draw that Florida s implied consent law requires submission only to a breath or urine test and that a blood test may be offered as an alternative. The trial court held this to be true even when an officer lacks probable cause to proceed under Florida s implied consent law. As such, the Petitioner s blood draw could not be considered

voluntary and was therefore inadmissible. The State subsequently filed a notice of appeal. On appeal, the State, relying on Schmerber v. California, 384 U.S. 757, 771 (1966), and Robertson v State, 604 So. 2d 783 (Fla. 1992), argued that Chu was either wrongly decided, or was inapplicable to the facts of this case. On January 7, 2011, the Fifth District Court of Appeal issued a written opinion reversing the trial court s suppression of the Petitioner s blood draw, State v. Murray, 5D10-1376. A copy of the district court s decision is included in the appendix to this brief. In declining to follow Chu as applied by the trial court, the Fifth DCA stated that (I)f Chu is read to require a contrary result, we acknowledge our direct and express conflict with it. (Bold and emphasis added). In light of the express and direct conflict between the rulings, Petitioner Murray requests that the Court accept jurisdiction in this case in order to resolve the conflict among the district courts regarding voluntary blood draws obtained during traffic accident investigations. D. SUMMARY OF ARGUMENT A current and express conflict exists among the district courts as to what is required under Florida law and constitutional due process considerations when law enforcement seeks a voluntary blood draw from a Florida driver. In the instant case, the Fifth DCA held that law enforcement officers may request blood draws

from any driver they are investigating, even those who show no signs of impairment, without reading implied consent or otherwise informing them of the less invasive tests authorized by the Legislature and required under the implied consent laws. In contrast, the Fourth District Court of Appeal has previously held that the Legislature did not intend to authorize law enforcement officers to request a blood test when the conditions in 316.1932(1)(c) and 316.1933(1) do not exist, and, more importantly, that a blood draw can be voluntary only when law enforcement informs a driver that Florida law only requires submission to a breath or urine test with a blood test only offered as an alternative. See Chu, supra. Petitioner Murray respectfully submits that it is proper for this Court to accept jurisdiction and resolve this express and direct conflict. E. JURISDICTIONAL STATEMENT The Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal on the same point of law. See Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). F. ARGUMENT AND CITATION OF AUTHORITY The decision below expressly and directly conflicts with Chu v. State, 521 So. 2d 330 (Fla. 4 th DCA 1988) and its progeny, concerning whether law enforcement officers are authorized to request voluntary blood draws when the circumstances required under 316.1932 and 316.1933 do not exist and

they do not fully inform drivers that Florida law only requires submission to a breath or urine test and a blood test may be requested only as an alternative. In the instant case, the Fifth DCA concluded that blood test results may be considered voluntary outside of the implied consent statutes even when drivers are not informed of the less invasive testing options. However, in making its decision, the Fifth District failed to consider the express intent of the Legislature, the protections granted to all drivers in Florida under the statutory framework and the due process implications of the implied consent law. By contrast, in Chu, the Fourth DCA held that breath and urine tests are the only tests authorized under Florida law except in the restricted circumstances of Section 316.1932(1)(c) (driver appearing for treatment at a medical facility and administration of a breath or urine test is impractical or impossible), or Section 316.1933(1) (probable cause for DUI present, and driver appears to be at-fault in a death case). The Chu court expressly stated that the legislature also provided that testing by blood sample may be used when the administration of a breath or urine test is impractical or impossible (footnote to FS 316.1932(1)(c) and when the law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual control of a person under the influence of alcoholic beverages or controlled substance has caused death or serious bodily injury of a human being (footnote to FS 316.1933(1).

However, the Chu court clearly made this important distinction: The plain language of the implied consent statutes show that when the circumstances described in sections 316.1932(1)(c) and 316.1933(1) are not present, the legislature has provided for the use of a breath test to determine the alcoholic content of the operator s blood and for a urine test to determine the presence of chemical substances: (emphasis added) (the court then quoted from the implied consent statute). Id. The Chu court further explained its reasoning as follows: We think it clear that the legislature intended and provided for the use of breath and urine tests, except under the circumstances described in 316.1932(1)(c) and 316.1933(1) and that the legislature did not intend to authorize a law enforcement officer to request a blood test when the conditions described above do not exist. However, we also recognize that circumstances may occur where it is more convenient for a person to submit to a blood test rather than a breath or urine test. Under such circumstance, we 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 and urine test and that the blood test is offered as an alternative. The key to admissibility is that the consent must be knowingly and voluntarily made and not the result of the acquiescence to lawful authority. Id. (emphasis added) In Petitioner Murray s second motion to suppress, the above language in Chu was properly construed by the trial court as requiring that every driver under investigation by law enforcement must be fully informed of Florida s implied consent law. (i.e., law only requires submission to a breath or urine test before an individual is asked to consent to a much more invasive blood draw that can only be administered by a medical professional).

The Chu decision also recognizes the due process protections afforded to all drivers by the Florida Legislature; this reasoning is especially true when a Florida driver has not shown signs of being under the influence (i.e., not suspected of committing a crime under the implied consent statutes), and therefore law enforcement lacks probable cause to proceed under Sections 316.1932 and/or 316.1933. Such an interpretation reaffirms the Legislature s express intent to extend to some motorists driving in Florida greater protection and rights of privacy than are provided by the state or federal constitutions. State v. McInnis, 581 So. 2d 1370, 1374 (Fla. 5th DCA), cause dismissed, 584 So.2d 998 (Fla. 1991); See also Sambrine v. State, 386 So.2d 546, 548 (Fla. 1980); State v. Langford, 816 So.2d 136, 139 (Fla. 4th DCA 2002); State v. Slaney, 653 So.2d 422 (Fla. 3d DCA 1995). The United States Supreme Court held that a state may choose to impose higher standards than required by the federal constitution. Cooper v. California, 386 U.S. 58, 62, 87, S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). It should be no surprise that implied consent imposes certain well defined restrictions which otherwise exceed Fourth Amendment standards. Slaney, 653 So.2d at 425. This Court in Robertson v. State, 604 So.2d 783 (Fla. 1992) recognized that voluntary blood draws may be admissible into evidence apart from implied consent law if the defendant knowingly and voluntarily consents to the test. However,

Robertson, decided after Chu, did not affect the express holding in Chu regarding the context in which blood draws may be truly considered knowing and voluntary. The holding of Chu makes it clear that the Florida Legislature has expressed its explicit intent that law enforcement officers cannot make an end run around legislative policy by attempting to get drivers to submit to voluntary blood draws when they lack probable cause to proceed under implied consent and they fail to inform drivers of the less invasive alternatives (i.e. breath or urine tests) that exist under Florida s implied consent law. Chu v. State, 521 So.2d at 332-33. See also State v. Dubiel, 958 So.2d 486 (Fla. 4th DCA 2007) (affirming Chu s two prong analysis for voluntary blood draws); Dep t of Highway Safety and Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007). Otherwise, this type of executive branch overreaching usurps the Legislature s plenary role in determining residents substantive rights. Florida courts have deemed this type of executive behavior unlawful. See State v. Webb, 753 So.2d 145 (Fla. 3d DCA 2000) (Holding inadmissible blood draws drawn as nothing more than a standard operating procedure in an accident involving serious bodily injuries ). The Fifth DCA s reasoning fails to recognize the potential for procedural abuse when it is policy of the Florida Highway Patrol to request consensual blood draws in every single case involving a traffic fatality even when they lack probable cause for DUI. The Chu court recognized the need for a level of protection for

Florida drivers and found this protection is mandated by Florida s implied consent statutory framework. The Court recognized a positive obligation on law enforcement to inform Florida drivers when seeking a voluntary blood draw outside the normal statutory scheme of implied consent. This reasoning is even more sound considering that individuals involved in a fatal accident have a statutory obligation to remain at the scene, to render aid and to participate in the accident investigation; accordingly, they are not free to leave. The Legislature has decided to confer greater protections to Florida motorists investigated for DUI than those found in the United States Constitution or Florida Constitution. Sambrine v. State, 386 So.2d at 548. This being true, it is both logical and reasonable that, at the very least, constitutional due process requires that drivers not suspected of driving under the influence be fully informed of the less invasive testing options under Florida s implied consent law before being asked to submit to the much more invasive blood draw. Thus, the Chu court s reasoning avoids the potential absurd result of offering less protection to individual drivers not suspected of DUI. Here, since the Florida Highway Patrol demanded blood and failed to notify Petitioner Murray that blood is offered only as an alternative to a breath or urine test, it violated Florida law and the defendants due process rights under Florida law, the Fourth, Fifth, and Fourteenth Amendments of the United States

Constitution, and Article I, Sections 9 and 12 of the Florida Constitution. As such, Petitioner Murray s consent to providing a blood sample was not voluntary as his consent was without full knowledge of the less invasive testing alternatives provided by the Florida Legislature. See Chu v. State, supra, and its progeny. As such, the trial court was correct in granting Petitioner Murray s second motion to suppress. Accordingly, Petitioner Murray respectfully requests this Court to accept jurisdiction in this case to resolve the direct and express conflict between the Fifth DCA s decision in the instant case and the Fourth DCA s opinion in Chu and its progeny. G. CONCLUSION This case presents an opportunity for this Honorable Court to resolve the direct and express conflict between the Fifth and Fourth Florida District Courts of Appeal. Moreover, this conflict leaves uncertainty involving extraordinary issues effecting both law enforcement and all drivers within this state. The Fourth DCA s holding in Chu is clear and explicit as represented by the trial court s adherence to Chu in granting its ruling to suppress in the instant case. In reversing, the Fifth DCA stated that (I)f Chu is read to require a contrary result, we acknowledge our direct and express conflict with it. (Bold and emphasis added). Petitioner Murray prays this Court will exercise its discretion in resolving and clarifying this express and direct conflict.

H. CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing Jurisdictional Brief of Petitioner s has been furnished by United States Mail to the Kristen L. Davenport, Esquire, Assistant Attorney General, 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, Florida, 32118 and to Jerry Burford, Esquire, Attorney for Petitioner BRINK, 204 NW 3 rd Avenue, Ocala, Florida, 34475, this 4 th day of February, 2011. DECARLIS, SAWYER & ALBA, PL By: /s/ J. Brian Page By: /s/ J. Michael Sawyer J. Brian Page, Esq. J. Michael Sawyer, Esq. Florida Bar No. 0061499 Florida Bar No. 0992275 5000 NW 27th Court, Suite C 5000 NW 27 th Court, Suite C Gainesville, Florida 32606 Gainesville, FL 32606 (352) 371-3838 telephone (352) 371-3838 telephone (352) 376-3442 facsimile (352) 376-3442 facsimile Counsel for Petitioner MURRAY Counsel for Petitioner MURRAY I. CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that this brief was typed using 14 point Times New Roman, a font that is not proportionately spaced, pursuant to Florida Rules of Appellate Procedure 9.210(a)(2). /s/ J. Brian Page /s/ J. Michael Sawyer J. Brian Page, Esq. J. Michael Sawyer, Esq. Counsel for Petitioner MURRAY Counsel for Petitioner MURRAY

IN THE SUPREME COURT OF FLORIDA DANIEL MURRAY & JAMES BRINK, Petitioners, v. District Court Case No. 5D10-1376 STATE OF FLORIDA Respondent. APPENDIX TO INITIAL BRIEF OF PETITIONERS J. BRIAN PAGE Florida Bar No. 0061499 J. MICHAEL SAWYER Florida Bar No. 0992275 Law Firm of DeCarlis, Sawyer & Alba, PL 5000 NW 27 th Court, Suite C Gainesville, FL 32606 (352) 371-3838/fax (352) 376-3442 Counsel for Petitioner MURRAY

INDEX No. Description Page 1. State v. Murray & Brink, 5D10-1376 (unpublished) 1

See original filing.