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State v. Schreiber1/22/2003
ON MOTION FOR REHEARING
We withdraw our previously filed opinion dated November 20, 2002 and replace it with the following.
The county court has certified the following question of great public importance to this court pursuant to Florida Rule of Appellate Procedure 9.160(b):
DOES THE STANDARD DUI JURY INSTRUCTION, WHICH INCLUDES BOTH THE IMPAIRMENT THEORY AND THE UNLAWFUL BLOOD ALCOHOL THEORY, HAVE THE EFFECT OF GIVING AN INSTRUCTION ON THE STATUTORY PRESUMPTIONS OF IMPAIRMENT IN SECTION 316.1934(2) , FLORIDA STATUTES (2001), SUCH THAT IT IS ERROR TO GIVE THE STANDARD DUI JURY INSTRUCTION WHERE BLOOD ALCOHOL RESULTS WERE ADMITTED VIA THE TRADITIONAL PREDICATE?
We have accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160(d). We answer the question in the negative. Since we have accepted jurisdiction over the certified question, we also have jurisdiction to address the county court's order on a motion to suppress, the merits of which are addressed, infra. See Fla. R. App. P. 9.160(f)(1); 9.140(c)(1)(B).
At approximately 4:00 a.m. on January 5, 2001, Davie Police Officer Lance Seltzer responded to a one-car accident. He observed a vehicle had crashed its front-end into a tree in the median. He then spoke with two eye-witnesses who informed him the vehicle had "just driven off the road" into the tree. Seltzer then made contact with Jennifer Schreiber, who was standing by the car, and was identified as its driver. According to Seltzer, he noticed a strong odor of alcohol emanating from her face. She told him she did not know what had happened and that both her ankles were in a lot of pain. She was given medical attention at the scene, and was transported to Broward County General Hospital where she was later treated for two fractured ankles. Schreiber was not placed under arrest at this time.
Seltzer went to the hospital and made contact with Schreiber. He claimed she still smelled of alcohol as they spoke. Seltzer asked her if he could take a sample of her blood; however, he did not read her her rights under the Implied Consent Law, §§ 316.1932, 316.1933, 316.1934, Fla. Stat. (2001). See § 316.1932(1)(a)(2)(c), Fla. Stat. (2001)(one capable of responding may refuse to submit to blood test, provided his or her license will be suspended for a year for such refusal, and the refusal itself is admissible as evidence in any criminal proceeding). Schreiber consented to Seltzer's request and a nurse took two blood draws. These blood draws reflected a blood alcohol content ("BAC") of 0.15 and 0.14, respectively.
Thereafter Schreiber was charged with driving "while she was under the influence of an alcoholic beverage to the extent that her normal faculties were impaired and/or with a of 0.08 or more," in contravention of Section 316.193, Fla. Stat. (2001). Schreiber moved to suppress the results of the January 5 blood tests that had been taken at Officer Seltzer's bequest, alleging her "consent" had not been knowing and voluntary, and Seltzer had lacked the authority to seize her blood. Schreiber also moved to strike that portion of the information which provided she had operated a motor vehicle "with a of 0.08 or more," relying on this court's original opinion in Dodge v. State, 26 Fla. L. Weekly D1550 (Fla. 4th DCA June 20, 2001), which had held since the Implied Consent Law was "insufficient," a jury could not be instructed on the presumption of impairment. See Miles v. State [Miles II], 775 So. 2d 950 (Fla. 2000)(holding FDLE procedures for handling blood samples, as delegated in the Implied Consent Law, are inadequate, and therefore the State is not entitled to the presumptions of imp
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