DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TAYLOR S. BUONANOTTE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-826
[February 15, 2023]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Leonard Hanser, Judge; L.T. Case No. 50-2021-MM-
005697-AXXX-SB.
Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jeanine M.
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
The defendant appeals an adjudication of guilt for driving under the
influence (“DUI”) causing property damage or injury (enhanced) and
resisting an officer without violence. She argues that the trial court erred
by denying her motion to suppress evidence of her blood alcohol content,
which was obtained via a blood draw. More specifically, she contends that
the state failed to prove that a breath test was impossible or impractical,
and, thus, it failed to prove the legality of the blood draw under section
316.1932(1)(c), Florida Statutes (2021), an implied consent statute. We
disagree and affirm.
At the hearing on the motion to suppress, the evidence revealed that
the defendant was involved in a violent car accident in which airbags
deployed and one of the cars rolled over. At the scene of the accident, the
defendant was emotional, frantic, yelling, and combative, as evidenced by
both officer testimony and footage from one police officer’s body camera.
The officers initially detained the defendant because she continuously
reached into her car despite commands by the officers to stop, and the
officers were concerned for their own safety as well as potential evidence
tampering. A second reason to detain the defendant was for a DUI
investigation, because the responding police officers observed the
defendant with red, glassy eyes, slurred speech, and emanating a strong
odor of alcohol.
When officers attempted to place the defendant in handcuffs, she
actively resisted, slipped out of her handcuffs several times, and refused
to sit in the back of the police car. Fire Rescue personnel eventually
administered ketamine, an anesthetic and sedative, due to her erratic
emotional state. Despite the defendant’s protests, Fire Rescue transported
her to the hospital.
A police officer went to the hospital thereafter and was told by the
charge nurse that the defendant would be there at least several hours
because of the nature of the crash and, the officer believed, because of Fire
Rescue having administered medication. A video taken at the hospital
showed that the defendant was lying in a hospital bed and in a neck brace.
The officer attempted to speak with the defendant, but she was incoherent,
so he asked hospital staff for a blood draw.
The trial court denied the defendant’s motion to suppress the blood
alcohol levels obtained from the blood draw, and the defendant entered a
plea, reserving the right to bring this appeal.
“The ruling of the trial court on a motion to suppress . . . is clothed with
the presumption of correctness, and the reviewing court will interpret the
evidence and reasonable inferences and deductions derived therefrom in a
manner most favorable to sustain the trial court’s ruling.” McNamara v.
State,
357 So. 2d 410, 412 (Fla. 1978). “[A]n appellate court must
determine whether competent, substantial evidence supports the lower
court’s factual findings, but the trial court’s application of the law to the
facts is reviewed de novo.” State v. Murray,
51 So. 3d 593, 594 (Fla. 5th
DCA 2011). “[T]he trial court’s determination whether the administration
of a breath or urine test is impractical or impossible is a finding of fact.”
Bedell v. State,
250 So. 3d 146, 150 (Fla. 1st DCA 2018).
Pursuant to section 316.1932(1)(c), Florida Statutes (2021), in relevant
part, a driver is deemed to have consented to having blood drawn for
testing for alcohol content or the presence of chemical substances or
controlled substances where (1) there is reasonable cause to believe the
driver has been driving under the influence of alcohol or chemical or
controlled substances, (2) the driver appears for treatment at a hospital,
and (3) the administration of a breath or urine test is impractical or
2
impossible. 1 “Any 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.”
Id.
The defendant disputes the state’s proof of only the third prong,
whether a breath or urine test was as the statute provides, “impractical or
1 Section 316.1932(1)(c) provides:
Any person who accepts the privilege extended by the laws of this
state of operating a motor vehicle within this state is, by operating
such vehicle, deemed to have given his or her consent to submit to
an approved blood test for the purpose of determining the alcoholic
content of the blood or a blood test for the purpose of determining
the presence of chemical substances or controlled substances as
provided in this section if there is reasonable cause to believe the
person was driving or in actual physical control of a motor vehicle
while under the influence of alcoholic beverages or chemical or
controlled substances and the person appears for treatment at a
hospital, clinic, or other medical facility and the administration of a
breath or urine test is impractical or impossible. As used in this
paragraph, the term “other medical facility” includes an ambulance
or other medical emergency vehicle. The blood test shall be
performed in a reasonable manner. Any 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. A blood test may be administered whether or not the
person is told that his or her failure to submit to such a blood test
will result in the suspension of the person’s privilege to operate a
motor vehicle upon the public highways of this state and that a
refusal to submit to a lawful test of his or her blood, if his or her
driving privilege has been previously suspended for refusal to
submit to a lawful test of his or her breath, urine, or blood, is a
misdemeanor. Any person who is capable of refusal shall be told
that his or her failure to submit to such a blood test will result in
the suspension of the person’s privilege to operate a motor vehicle
for a period of 1 year for a first refusal, or for a period of 18 months
if the driving privilege of the person has been suspended previously
as a result of a refusal to submit to such a test or tests, and that a
refusal to submit to a lawful test of his or her blood, if his or her
driving privilege has been previously suspended for a prior refusal
to submit to a lawful test of his or her breath, urine, or blood, is a
misdemeanor. The refusal to submit to a blood test upon the
request of a law enforcement officer is admissible in evidence in any
criminal proceeding.
§ 316.1932(1)(c), Fla. Stat. (2021).
3
impossible.” She asserts that she should have been transported to a blood
alcohol testing (“BAT”) center while she was coherent and in handcuffs,
but, instead, she was given a powerful sedative against her will, and the
officer at the hospital took advantage of her sedation by ordering a blood
draw without her consent. We disagree.
At the outset, we note that a urine test was impractical because the
defendant was suspected of impairment due to alcohol consumption and,
for purposes of section 316.1932, “[b]reath and blood tests detect alcohol
content, whereas urine tests detect controlled substances.” See State v.
Bodden,
877 So. 2d 680, 689 (Fla. 2004).
Thus, we focus our analysis on the impossibility or impracticality of a
breath test. A “standard evidentiary breath test is conducted after a
motorist is arrested and transported to a police station, governmental
building, or mobile testing facility where officers can access reliable,
evidence-grade breath testing machinery.” Mitchell v. Wisconsin,
139 S.
Ct. 2525, 2534 (2019) (quoting Birchfield v. North Dakota,
579 U.S. 438,
487 (2016) (Sotomayor, J., dissenting in part)).
Mere inconvenience of a breath or urine test will not demonstrate
impossibility or impracticality. State v. Bokilo, 23 Fla. L. Weekly Supp.
289a (Brevard Cty. Ct. May 11, 2015). In Bokilo, the county court
determined that the defendant, who was in a rollover crash and was
secured to a backboard on a gurney in the hospital, did not sufficiently
demonstrate impossibility or impracticality of a breath test.
Id. Additional
evidence to establish impracticality “might” have included: “medical input
as to the Defendant’s condition and anticipated release time, availability
of mobile breath test units, and the distance of the hospital to the police
department.”
Id.
Likewise, in Zelonker v. State, 29 Fla. L. Weekly Supp. 227b (Fla. 11th
Cir. Ct. June 3, 2021), the circuit court sitting in an appellate capacity
determined that the state failed to prove impossibility or impracticality of
a breath test where the non-hospitalized defendant was complaining of
pain in his chest and back, but the defendant was conscious and in the
officers’ presence, testing equipment was readily available, and there was
no evidence that defendant refused to submit to a breath test. Id.; see also
Gracia v. State, 21 Fla. L. Weekly Supp. 875a (Fla. 15th Cir. Ct. May 8,
2014) (reversing denial of motion to suppress where DUI defendant was
not in an accident, was taken to BAT facility, could not take breath test
because there was blood in his mouth, and was then taken to a hospital
to get medically cleared for breath test; officer did not inquire as to length
of hospital stay or requisite treatment, so his request for blood sample was
4
not based on impossibility or impracticality of breath test); State v. Garrett,
25 Fla. L. Weekly Supp. 71a (Orange Cty. Ct. Feb. 17, 2017) (granting
motion to suppress and determining there was insufficient evidence of
impossibility or impracticality where defendant asked to be taken to
hospital, but there was no testimony regarding defendant’s medical
condition or likelihood of hospitalization and what the officer knew of that
condition).
By contrast, in Bedell, 250 So. 3d at 148, the defendant was involved
in a car accident, her condition following the accident required physical
assistance before she could enter the ambulance, and she was transported
to a hospital where she was conscious but had an IV in her arm. Id. The
First District upheld a determination that a urine test was impractical or
impossible where a deputy testified that the defendant could not “safely”
walk to a bathroom to provide a urine sample, and where the deputy did
not offer her a breath test because he had no equipment to do so. Id. at
148, 150. The court noted that, although medical personnel could have
been called to assist the defendant to the bathroom, a urine test remained
“impractical.” Id. at 150.
Turning to the case before us, the record clearly supports the trial
court’s determination that a breath test was impossible or impractical.
Even prior to being administered the ketamine, the defendant was yelling,
thrashing, and refusing to cooperate for an extended period of time. The
evidence reflected that the officers could not effectively restrain her, as she
repeatedly slipped out of her handcuffs and would not sit when she was
in the back of the police car. From that evidence alone, it appeared
unlikely that the defendant could be safely transported to a BAT facility,
thus rendering administration of a breath test impractical.
Moreover, a breath test was impossible or impractical because the
defendant was brought to the hospital, and medical personnel told the
police officer that the defendant could not be released to him because the
necessary tests to evaluate her for injuries would take at least a few hours.
As the trial court explained, “the time frame for Defendant to be in the
hospital (several hours), plus the time from the accident to getting to the
hospital and being discharged therefrom, plus the time to be taken to a
breath testing facility (and possibly the twenty-minute observation period
required for a breath test, if not satisfied before arriving at the breath test
location) indicates that a breath test was impractical or impossible.”
Contrary to her argument, the fact that the defendant was taken to the
hospital against her will instead of a breath alcohol testing facility does
not change the outcome.
5
In investigations where there is a potential injury, great
deference must be accorded to the trained medical personnel
on scene in determining the practicality of obtaining a breath
test. The law enforcement officers should respect the
judgment of the medical professionals because the health and
safety of a Defendant must always take precedence over
securing evidence for the purposes of obtaining a conviction.
. . . [W]here it is a close call as to whether the Defendant
should be transported to a medical facility or a DUI facility,
public policy demands that we err on the side of caution.
State v. Renwick, 7 Fla. L. Weekly Supp. 406a (Miami-Dade Cty. Ct. Apr.
4, 2000).
Here, although there was not testimony from the medical personnel on
the scene and the defendant did not have any visible injuries, the evidence
nevertheless demonstrated that the defendant was involved in a serious
accident. As the trial court found, not taking her to the hospital would
have been “unreasonable due to the risk of internal injuries not
immediately obvious or detectable. For this Defendant, that factor
combined with the intensity and duration of her confrontation with law
enforcement, clearly showed the need for Defendant to be medically
examined.”
The officer’s failure to ask for consent is likewise not dispositive in this
case as the defendant was in a stupor and unable to coherently respond
to basic questions. Thus, she was “incapable of refusal by reason of . . .
mental or physical condition” and was thereby “deemed not to have
withdrawn” her consent to a blood test. Although her state of stupefaction
may have been the result of the administration of ketamine, as the trial
court found, there was no evidence that the ketamine was administered at
the direction of law enforcement. (We note, however, as the trial court did
below, that “[i]t would be fundamentally unfair for law enforcement to
produce, or be an agent of producing, the mental condition, which resulted
in waiving the reading of implied consent.”)
Finally, we point out that the defendant does not argue the evidence
should have been suppressed based on the Fourth Amendment, so any
such issue is beyond our scope of review in this case.
In sum, because the state’s evidence demonstrated that a breath test
was impractical or impossible under the circumstances, the trial court did
not err by denying the motion to suppress. We affirm.
6
Affirmed.
WARNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
7
