E-Copy Received May 9, 2014 10:36 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND FOR
UKAIN(.th UUUIN I Y,ILUKIJ)A
STATE OF FLORIDA
Plaintiff/ADDellant.
CASE NO:
48-2011-CF-013421-O
vs.
DIVISION:
12
WADE F. LILES
veIenaanvJ-ppeuee.
NOTICE OF APPEAL
NOTICE IS GIVEN that the Plaintiff/Appellant, State of Florida, appeals to the Fifth
District Court of Appeal an Order of this Court rendered on the 29 April 2014. The nature of the
Order(s) is:
RESULTS OF TESTING CONDUCTED ON BLOOD DRAWN FROM THE
DEFENDANT rendered on 29 April 2014.
I DO CERTIFY that a copy (copies) hereof (has) (have) been furnished to James C.
Dauksch, III, C/O Inventory Attorney, 636 W. Yale Street, Orlando, FL
Snure, 425 W. New England Avenue, Suite
(çn\ 11\
+h
or
200,
32801;
and Michael
Winter Park, FL 32789 by (delive
fl1
JEFFREY L. ASHTO , St1te ttor4y
Ninth Judicial rcui of ¡orid/
f
Wifflaii
roURT
IL.tU U'
'
erk{r. ot., rnange
Assistant State Attorney
Florida Bar # 0602205
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'
JJ1v1sion1Ltau,.u1g
uw, '
C
By
Biidh-"
PO Box 1673, 415 N Orange Ave
Suite 400
Orlando, FL 32802-1673
(407)836-2190
State of Florida, County of Orange
FOR
I hereby certify that the foregoing is a true and correct copyCOUNSEL
of the instrument
filed APPELLANT
in this office.
Confidential items have been removed, as necessary per Fla.R.Jud.Admin.2.240.
Witness my hand and official seal this 5/9/2014.
Eddie Fernandez, Clerk of the Circuit Court
By: /s/ Linda Steadward, Deputy Clerk
(mail)
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA
STATE OF FLORIDA
Plaintiff
Case Number: 48-201 1-CF-13421-A-O
y.
WADE LILES
Defendant.
TESTING CONDUCTED ON BLOOD DRAWN FROM THE DEFENDANT
THIS CAUSE having come on to be heard on the DEFENDANT'S MOTION TO
EXCLUDE RESULTS OF TESTING CONDUCTED ON BLOOD DRAWN FROM
THE DEFENDANT and the Court being fuiiy advised on the premises, it is hereby
ORDERED AND ADJUDGED as follows:
Absent a warrant, blood can only be obtained by the Government from a person,
the instant case the only possible exceptions would be exigency, consent and Fia. Stat.
316.1933.
With regard to exigency, the case of Missouri y. McNeely, 133 S.Ct. 1552 (2013),
makes it clear that Schmerber y. California, 86 S.Ct. 1826 (1966) did not authorize a
warrantless searches of a person's blood simply because a blood alcohol level declines
over time. Instead, under Schmerber, each case is looked at on an individual basis to
evidence failed to establish an exigency existed to take the Defendant's blood without his
consent.
With regard to consent, the record is clear the Defendant did not expressly
consent. However, implied consent may' be a recognized exception to the warrant
requirement to obtain a defendant's blood.
McNeely at 1566. Fia. Stat.
316.1932(1)(c), a part of implied consent, provides for when a driver has impliedly
'Cf. Frost y. Railroad Commission, 271 US 583 (1926), cited with approval in Koontz y. St. Johns River
State of Florida, County of Orange
Water
Management
133 S.Ct.
2586,
2596
(2013)
(for
regulation
thatoffice.
required the
I hereby
certify thatDistrict,
the foregoing
is a true
and
correct
copy
of invalidating
the instrument
filed in this
Confidential
items
been removed,
perprecedent
Fla.R.Jud.Admin.2.240.
petitioner
to give
up have
a constitutional
right as
"asnecessary
a condition
to the enjoyment of a privilege.")
Witness my hand and official seal this 5/9/2014.
Eddie Fernandez, Clerk of the Circuit Court
By: /s/ Linda Steadward, Deputy Clerk
consented to a blood draw. However, the facts as testified to at the hearing failed to
proceeding under this subsection.
Instead, the State indicated that the State was relying on Fia. Stat. 316.1933 to
justify the warrantless search of the Defendant's blood. However, FIa. Stat. 316.1933 is
not part of the implied consent
law.2
Fla. Stats. 316.1932(1)(a)la, 316.1932(1)(a)lb,
316.1932(1 )(c), and 316.1932(1 )(e) clearly set forth what is covered by Florida's implied
consent law. While previous versions of Fia. Stat. 316.1933 were part of implied consent
instant blood was withdrawn does not. Prior to July 1, 2002 Fia. Stat. 316.1933(1)
required that a person "shall submit, upon the request of a law enforcement officer, to a
test of the person's blood ..." if the officer had probable cause to believe that the
defendant had driven a vehicle while under the influence of alcohol or drugs and caused
the death or serious bodily injury of a human being. However, Laws of Florida Chapter
2002-263 (the result of the passage of the C.S.C.S.H.B. 1057) altered the state of affairs
now directs the law enforcement officer to require a person to submit to a test by
reasonable force if necessary. In amending the statute, the legislature appears to have
misinterpreted Schmerber y. California, 384 U.S. 757 (1966). This finding is based upon
the staff analysis for CSCSHB 1057 under the section titled "Constitutional Issues"
which states:
The United States Supreme Court has held that requiring someone to
Amendment's prohibition against unreasonable searches and seizures or
the Fifth Amendment right against self-incrimination. See Schmerber y.
California, 384 U.s.
757
(1966).
Intellectual honesty requires this Court to find that this modification of the law was the
legislature's adoption of the Schmerber exigency standard and removal of Fia. Stat.
State of Florida, County of Orange
This
factthat
seems
be ignored
older
case copy
law interpreting
the prefiled
2002
I hereby
certify
theto
foregoing
is adue
truetoand
correct
of the instrument
in amended
this office.version of
Confidential
items have been removed, as necessary per Fla.R.Jud.Admin.2.240.
FIa.
Stat. 316.1933.
Witness my hand and official seal this 5/9/2014.
Eddie Fernandez, Clerk of the Circuit Court
By: /s/ Linda Steadward, Deputy Clerk
316.1933 out of the implied consent law.3 Unfortunately for the State, as discussed
the blood withdraw. Without an established exigency, Schmerber did not authorize a
warrantless blood withdrawal. See McNeely.
If the legislature's amendment was not an attempt to adopt the Schmerber
standard by amending Fia. Stat. 316.1933, the statute would be unconstitutional by failing
to require the existence of an exigency before directing the officer to obtain blood. See
McNeely. The next issue is whether or not, under the circumstances, the officer was
5th
69 So.3d 1023 (Fia.
DCA2O1 1), the Fifth DCA laid out the general good faith
exception to the exclusionary rule. However, with ail general rules there are recognized
exceptions. In Illinois y. Krull, 480 U.S. 340, 349-350, 355, 107 S. Ct. 1160, 1167, 94
L. Ed. 2d 364 (1987) the United States Supreme Court addressed whether the good faith
exception could be applied to a clearly unconstitutional statute:
Unless a statute is clearly unconstitutional, an officer cannot be expected
cannot support objectively reasonable reliance if, in passing the statute, the
legislature wholly abandoned its responsibility to enact constitutional
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officer should have known that the statute was unconstitutional.... As we
emphasized in Leon, the standard of reasonableness we adopt is an
individual officers.
Pursuant to Munoz y. State, 629 So.2d 90, 98 (Fia. 1993) "the legislature cannot enact a
statute that overrules a judicially established legal principle enforcing or protecting a
federal or Florida constitutional right." In the instant case, the Florida Legislature's 2002
amendment of Fia. Stat. 316.1933 directed law enforcement to conduct a warrantless
Even if this Court were to find that the legislature was not attempting to adopt Schmerber, the
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The Defense argues that the State failed to lay the predicate to allow the blood to be withdrawn
State of Florida, County of Orange
under
Fia. Stat.
316.1933;
however, isthat
determination
not isofnot
this intime.
if this
I hereby
certify
that the foregoing
a true
and correctiscopy
thenecessary
instrumentatfiled
this However,
office.
Confidential
items on
have
beenthis
removed,
as necessary
pertoFla.R.Jud.Admin.2.240.
Opinion
is reversed
appeal,
Court will
be prepared
issue a separate Order on that issue.
Witness my hand and official seal this 5/9/2014.
Eddie Fernandez, Clerk of the Circuit Court
By: /s/ Linda Steadward, Deputy Clerk
nonconsensual non-exigent search of a non-arrested person's blood. Such a statute, as
police officer to take a warrantless nonconsensual non exigent DNA or blood sample of
any non-arrested person the officer has probable cause to believe committed a sexual
battery.
Under Krull and Munoz, even assuming the facts of the instant case met Fia. Stat.
316.1933, unless the statute adopted the Schmerber standard, the statute is clearly
unconstitutional without an exigency requirement and where the statute is no longer part
legislature wholly abandoned its responsibility to enact constitutional laws and under
Krull the State cannot rely upon a good faith reliance on a statute in the instant case
which purports to trump the Fourth Amendment to the United States Constitution.
In conclusion, the warrantless, nonconsensual, nonexigent blood draw of the
Defendant violates the State and Federal Constitutions and therefore the Defendant's
Motion to Exclude is Granted.
AA
JJ1NE, J1NLi(frJP.JJJ1JLJ UI LdWJIIUI lu 'Jiiai5u, 'J1dJ1
jCjthdayof
2014.
V'
MIKE MURPHY
Circuit Judge
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
the Office of the State Attorney, Division 12 (Division12sao9.org); and Michael Snure,
425 W. New England Avenue, Suite 200, Winter Park, FL 32789
(snuremcrimina1defenselaw.com) by email and US mail.
J UUI.'1U
LL1L
4L
2014.
State of Florida, County of Orange
I hereby certify that the foregoing is a true and correct copy of the instrument filed in this office.
Confidential items have been removed, as necessary per Fla.R.Jud.Admin.2.240.
Witness my hand and official seal this 5/9/2014.
Eddie Fernandez, Clerk of the Circuit Court
By: /s/ Linda Steadward, Deputy Clerk