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State v. Serrago7/2/2004
a lawful arrest. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances: (1) where there is reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances; (2) where the person appears for treatment at a medical facility; and (3) where the administration of a breath or urine test is impractical or impossible.
The only reason that section 316.1932(1)(c) mentions breath or urine tests is to limit blood draws to those situations in which a breath or urine test, impliedly authorized pursuant to section 316.1932(1)(a), was impossible or impractical. It does not specifically authorize any breath or urine tests, nor is its language susceptible of an interpretation that impliedly authorizes breath or urine tests. Rather, section 316.1932 clearly distinguishes between breath and urine tests, which are authorized by section 316.1932(1)(a), from blood tests, which are authorized by section 316.1932(1)(c). We conclude, therefore, that the trial court erred in concluding that section 316.1932(1)(c) impliedly authorized the urine test performed here.
This analysis is supported by case law, which has historically treated blood tests differently than breath and urine tests. In State v. Williams, 417 So. 2d 755 (Fla. 5th DCA 1982), the Fifth District, in considering a breath test that was taken from an individual who was not under arrest, found that the legislative intent to treat blood tests differently from breath and urine tests was revealed in the legislature's failure to change the law as it relates to breath and urine when it changed the law regarding blood tests. Id. at 758. In State v. Hilton, 498 So. 2d 698, 700 n.4 (Fla. 5th DCA 1986), the court observed: "We note that, unlike breath or urine tests, a blood test administered pursuant to section 316.1932(1)(c) need not be incidental to a lawful arrest." In addition, Department of Highway Safety & Motor Vehicles v. Whitley, 846 So. 2d 1163, 1167 (Fla. 5th DCA 2003), quoted with approval from State v. Barrett, 508 So. 2d 361, 362 (Fla. 5th DCA), review denied, 511 So. 2d 299 (Fla. 1987), as follows: " ' he legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.' " The court noted that since Barrett, the legislature had not substantially amended the statute, indicating its intent that prearrest breath tests should remain inadmissible.
Given our interpretation of section 316.1932, which clearly places breath and urine tests in a category that is separate from blood tests, we conclude that the trial court erred when it applied the blood test requirements portion of section 316.1932(1)(c) to Serrago's urine test in order to find that it was admissible. Because section 316.1932(1)(a) clearly requires that urine tests must be conducted pursuant to a lawful arrest, and because Serrago was not under arrest at the time that the urine test was taken, the urine test here was not admissible.
Having concluded that the trial court erred in suppressing Serrago's blood tests and in refusing to suppress Serrago's urine tests, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
FULMER and SILBERMAN, JJ., Concur.
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