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State v. Kliphouse9/27/2000
t, and the world of mere possibilities. Reasonable cause involves a basis to believe that something is merely possible, that it may be true, that it is not merely fanciful or wishful but conceivable and could well be real. The realm of the possible distinguishes the contradictory realm of the impossible, of something that is incapable of being real, and comprehends what scientists and statisticians refer to as an association or a correlation.
Probable cause, as its very words indicate, is something more than a mere possibility. It means that more likely than not something is true. Surely, the odor of alcohol on the breath reasonably indicates that a driver has consumed alcohol. For that matter it may also show more likely than not that the level is at or above .08, the levels specified in subsections (1)(b) and (c). A definite odor of alcohol realistically indicates that one has consumed alcohol before driving, and thus that one may very well be under the influence of alcohol and consequently impaired.
The proposition that the legislature was aware of the distinction between probable and reasonable is evident from a comparison of the two implied consent statutes-viz., section 316.1932(1)(c) and section 316.1933(1). Section 316.1933(1) is the statute involved in State v. Brown, 725 So. 2d 441 (Fla. 5th DCA 1999), prominently relied upon by the majority. Section 316.1933(1) is restricted to cases of death or serious injury and provides that an officer may require the driver to submit to a blood test if the officer has probable cause to believe that the driver was under the influence of alcoholic beverages.
Section 316.1932(1)(c), the implied consent applicable in this case, does not use the term probable cause. For these crimes not involving death or injury punishable under section 316.193(1), the implied consent turns on reasonable cause. Because of the public safety and the dangers caused by drivers impaired by alcohol, as well as the relatively minor inconvenience caused by blood tests on drivers already being treated at a hospital, I believe that the legislature could make the implementation of a consent from even a driver ultimately shown to be innocent turn on this qualitatively less stringent showing than probable cause.
We must not forget that section 316.193(1) creates a "strict liability" crime. See Baker v. State, 377 So. 2d 17, 19 (Fla. 1979) (though not favored, statutes imposing strict criminal liability are valid; legislature intended simple DUI statute without death or serious bodily injury to have strict liability consequences); and cf. Magaw v. State, 537 So. 2d 564, 567 (Fla. 1989) (prior to 1986 amendment, even felony DUI statute involving death or serious bodily injury was strict liability crime). Essentially, section 316.193(1) punishes the act of driving when drinking, without regard to the state of mind of the driver or whether the driving has resulted in any traffic accident or injury. Section 316.193(1) does not require any showing of criminal intent or causal relationship. Moreover, as we have seen, subsections (1)(b) and (c) do not even require any showing of visible signs of impairment. Thus it is apparent that subsections (1)(b) and (c) have an additional strict liability consequence not shared by subsection (1)(a). Because section 316.193(1) punishes the mere act of driving after consuming alcohol even when impairment is not shown, nothing in section 316.1932(1)(c) requires anything beyond the mere presence of some alcohol having been consumed to trigger reasonable cause.
Section 316.1932(1)(c) was deliberately drafted as a consent to the test, not as brute authority for the state to take the blood. This statute provides that
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