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Rafferty v. State8/1/2001
laced on a storage shelf in the evidence room instead of in the refrigerator. At 2:40 p.m., a FHP trooper picked up the blood samples for delivery to the FDLE in Fort Myers, although the trooper did not remember if the samples were transported in the air-conditioned area of his vehicle or in the trunk. At 3:30 p.m. on August 6, 1997, the FDLE in Fort Myers received the samples, which the FDLE crime laboratory analyst "assumed" had been refrigerated. The following day the FDLE in Fort Myers released the samples to Airborne Express for delivery to the FDLE in Tampa where the blood samples were to be tested. Although the samples were labeled "biohazard," they were not labeled perishable. The blood did not reach the FDLE in Tampa until August 13, 1997. There was no testimony as to where the blood samples were located for those six days or the conditions under which the blood samples were stored.
It is clear from the expert testimony that the integrity of the blood samples may have been compromised by the failure to ensure the samples were refrigerated for eight days before they were tested. Because the storage conditions reflect noncompliance with the implied consent law, the trial court erred in granting the State statutory presumptions of admissibility of the blood alcohol test results and impairment. Thus, we reverse and remand for further proceedings consistent with this opinion.
Although our reversal renders this issue moot, we note that the State was correct in its position on cross-appeal that the trial court erred in imposing a downward departure sentence. The trial court listed the following reasons in support of the downward departure sentence: (1) one of Rafferty's children had died; (2) the children's mother had been injured; and (3) the surviving child and his mother needed Rafferty's financial support. None of these reasons is listed in section 921.0026(2), Florida Statutes (1997), as a mitigating circumstance under which departure is reasonably justified. However, the statutory mitigating circumstances are not exclusive. State v. Amodeo, 750 So. 2d 664, 665-66 (Fla. 5th DCA 1999).
Generally, mitigating circumstances supporting a downward departure ameliorate the level of the defendant's culpability. State v. D'Alexander, 496 So. 2d 1007, 1008 (Fla. 2d DCA 1986). In evaluating a non-statutory mitigating circumstance, the question the trial court should ask is whether the non-statutory reasons for downward departure given meet the legislative policy for departing downward. State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998). It cannot be said that the legislature intended lesser punishments when the victims of offenses are family members or loved ones. Similarly, the Fourth District has concluded that a finding that the defendant has "suffered enough" for his crime because of related sentences was insufficient to support a downward departure. State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989). Additionally, it would not be good policy for the legislature to punish those with families to support less than those without families. Cf. State v. Bray, 738 So. 2d 962 (Fla. 2d DCA 1999) (holding that the fact that a defendant had a child to support did not support a downward departure).
Reversed and remanded.
FULMER and DAVIS, JJ., Concur.
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