Is that a serious bodily injury? Analysis of forced blood draws under F.S. s. 316.1933(1).

Under Florida law, a law enforcement officer may obtain a blood sample, by use of reasonable force if necessary, if the officer has probable cause to believe a motor vehicle driven by a suspect under the influence of alcoholic beverages has caused the death or serious bodily injury of a human being. (1) "Serious bodily injury" is defined as "an injury to any person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ." (2) Although the definition of "serious bodily injury" in F.S. [section] 316.1933(1)(b) seems relatively precise, the dearth of Florida case law on the subject may propagate uncertainty among law enforcement officers, as well as practicing attorneys, regarding when a forced blood draw under [section] 316.1933(1) is appropriate.

Florida case law reveals that "common sense" may indicate when a forced blood draw under [section] 316.1933(1) is appropriate. For example, in Gerlitz v. State, 725 So. 2d 393 (Fla. 4th DCA 1998), an accident occurred involving a pickup truck and a bicycle. The bicyclist suffered a broken back from the accident and was being transported to the hospital when the investigating officer arrived on the scene. The investigating officer smelled an alcoholic beverage on the breath of the pickup truck driver and subjected him to a compelled blood alcohol test. The trial court denied the pickup truck driver's motion to suppress the results of the blood test, and the Fourth District Court of Appeal affirmed the trial court's ruling. The Fourth District's decision in Gerlitz complies with "common sense" because few people would contend that a broken back does not qualify as a "serious bodily injury." Nevertheless, "common sense" is much less helpful when addressing whether injuries less severe than a broken back constitute "serious bodily injuries" under [section] 316.1933(1).

During a Monday Night Football featured game in November of 1985, New York Giants linebacker Lawrence Taylor sacked Washington Redskins quarterback Joe Theismann. (3) The ubiquitous Monday Night Football cameras captured the shockingly gruesome impact of the play. The result of Taylor's bone-crushing blow was a compound fracture to Theismann's lower leg, an injury which ended his professional football career. Most individuals familiar with this grim incident would agree that Theismann suffered a serious bodily injury under any definition of the term. At least one Florida appellate court, however, has held an injury similar to Theismann's may not necessarily constitute a "serious bodily injury" under [section] 316.1933(1).

At approximately 4 a.m. on March 8, 2001, a woman drove onto the center median of a major south Florida roadway and struck a tree head-on. The impact of the crash caused major damage to the vehicle. A police officer responded to the scene and spoke with witnesses who observed the crash. The witnesses told the police officer that the woman's vehicle just went off the road right into the tree. The weather was clear at the time of the accident; the roadways were dry; and no other cars were headed the same direction as the car involved in the accident.

The police officer made contact with the woman at the scene of the accident and noticed a strong odor of alcohol coming from her facial area when she spoke. The woman sustained injuries to her legs from the accident and she stated she did not know what happened. Fire rescue arrived at the scene and transported the woman to the hospital. The woman sustained a compound fracture to her right ankle and a fracture of her left ankle in the accident. The compound fracture to the woman's right ankle required surgery. The woman's injuries were so severe that she was "out of commission" for two months after the crash.

The police officer proceeded to the hospital, made contact with the woman, and again noticed the odor of alcohol when she spoke. The police officer obtained two samples of the woman's blood. The results of the blood tests showed that the woman's blood alcohol level was. 15 and .14, respectively. Although the woman admitted she had been drinking the night of the incident, she filed a motion to suppress the results of the blood tests. The trial court granted the woman's motion to suppress, and the appellate court upheld the trial court's ruling. (4)

In State v. Schreiber, 835 So. 2d 344, 347 (Fla. 4th DCA 2003), the appellate court affirmed the trial court's ruling on the motion to suppress and held the police officer lacked authority to conduct a forced blood draw under [section] 316.1933(1) because "the only injury resulting from the accident was Schreiber's two fractured ankles, from which she fully recovered." The court stated the police officer had no probable cause to believe the woman's operation of the vehicle had resulted in the death or serious bodily injury of a human being. (5) The court relied on dicta in a civil case, Galgano v. Buchanan, 783 So. 2d 302 (Fla. 4th DCA 2001), to support its conclusion.

In Galgano, the appellate court stated that the plaintiff's broken leg (which constituted a five-percent permanent impairment) was not a "serious bodily injury" as defined in [section] 316.1933(1). The Galgano opinion did not indicate whether the plaintiff's injury 1) was a compound fracture, 2) was severe enough to require surgery, or 3) put the plaintiff "out of commission" for several months. Depending on the circumstances, it seems logical to conclude that a broken bone mayor may not qualify as a serious bodily injury under [section] 316.1933(1). For example, the compound fracture of Joe Theismann's leg obviously created a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ. In contrast, it is unlikely that the broken ankle sustained by Philadelphia Eagles quarterback Donovan McNabb during the first quarter of a November 17, 2002 football game would constitute a serious bodily injury because he played the remainder of the game despite the injury and returned to action less than two months later. (6) The Schreiber court's reliance on Galgano appears misplaced because the plaintiff in Galgano suffered a broken leg of unknown severity while the defendant in Schreiber sustained two broken ankles (one of which was a compound fracture that required surgery).

Although there was a paucity of Florida case law regarding this matter prior to Schreiber, (7) cases from several other jurisdictions have held that a compound fracture constitutes a serious bodily injury under analogous circumstances. For example, in United States v. Brown, 2002 WL 31529016 (10th Cir. 2002), the 10th Circuit Court of Appeals held that a compound fracture of a victim's leg sustained during the defendant's assault constituted a serious bodily injury. Similar results were reached in Gilmore v. State, 1999 WL 976499 (Tex. Ct. App. 1999) (victim's ankle fracture dislocation constituted a serious bodily injury), and United States v. Garcia-Camacho, 122 F.3d 1265 (9th Cir. 1997) (victim's severely broken ankle was a serious bodily injury). Despite this persuasive authority, the Schreiber court affirmed the trial court's ruling because "the only injury resulting from the accident was Schreiber's two fractured ankles, from which she fully recovered." (8)

A close reading of [section] 316.1933(1) reveals that a law enforcement officer may obtain a forced blood draw even if nobody truly sustains a serious bodily injury as a result of the accident. Under [section] 316.1933, a law enforcement officer may obtain a blood sample, by use of reasonable force if necessary, if he or she has probable cause to believe a motor vehicle driven by a suspect under the influence of alcoholic beverages has caused the death or serious bodily injury of a human being. The Second District's decision in State v. Catt, 28 Fla. L. Weekly D341 (Fla. 2d DCA Jan. 31, 2003), provides an excellent illustration of this point.

In Catt, the defendant was driving a vehicle and collided with another truck that was pulling a boat. The impact caused the passenger door of the defendant's car to open, and the defendant's toddler daughter was ejected from the vehicle. The child hit the pavement and rolled to the side of the roadway. Police officers and emergency medical technicians (EMTs) responded to the scene. The EMTs evaluated the child and were concerned about possible serious head or internal injuries. The EMTs decided to have the child airlifted to the hospital to determine the extent of her injuries. The police officers smelled alcohol on the defendant's breath. After the child was airlifted from the scene, the police ordered a blood draw pursuant to [section] 316.1933.

The trial court found that the police officers did not have probable cause to believe that "serious bodily injuries" resulted from the accident and granted the defendant's motion to suppress the results of the blood test. The Second District, however, reversed the trial court's decision and stated, "The fact that the child had been ejected from the car and rolled on the road, combined with the fact that the EMTs had decided to airlift her to an out-of-county hospital, was sufficient to support a common sense conclusion that the child suffered serious bodily injuries in the accident." (9)

Although the Catt opinion does not indicate whether the defendant's child actually sustained a "serious bodily injury" as a result of the accident, such a fact is irrelevant when addressing the propriety of a forced blood draw under [section] 316.1933(1). The plain language of [section] 316.1933(1) permits a law enforcement officer to force a blood draw if he or she has probable cause to believe a motor vehicle driven by a suspect under the influence of alcoholic beverages has caused the death of serious bodily injury of a human being. The focus of the statute is whether a law enforcement officer has probable cause to force a blood draw, and nothing in [section] 316.1933(1) requires that someone actually die or endure a serious bodily injury before admitting the test results of a forced blood draw into evidence. Therefore, a proper analysis under [section] 316.1933(1) focuses on whether, based upon the facts available to law enforcement officers at the time, the officers had probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages had caused the death or serious bodily injury of a human being. (10)

Conclusion

A proper analysis for determining the propriety of a forced blood draw pursuant to [section] 316.1933(1) concentrates on whether the law enforcement officer had probable cause to believe a motor vehicle driven by a suspect under the influence of alcoholic beverages had caused the death of serious bodily injury of a human being. Such an analysis should focus on the facts available to law enforcement officers at the time the blood draw is ordered because [section] 316.1933(1) does not require that someone actually die or endure a serious bodily injury before admitting the test results of a forced blood draw into evidence. (11) Accordingly, courts and practitioners should refrain from "Monday morning quarterbacking" when assessing whether a forced blood draw pursuant to [section] 316.1933(1) was proper.

(1) FLA. STAT. [section] 316.1933(1)(a) (2002).

(2) FLA. STAT. [section] 316.1933(1)(b) (2002).

(3) Christine Brennan, Theismann Out for the Year, Redskins Win, WASHINGTON POST, November 19, 1985; Mike Broadhurst, Theismann gets the "Education Vacation" off to a rousing start, www.ntlfloortrends.com/CDA/ ShowCoverageItem/ 0,3622,24995,00.html.

(4) State v. Schreiber, 835 So. 2d 344 (Fla. 4th D.C.A. 2003).

(5) Id. at 348.

(6) McNabb tosses 4 TDs with a broken ankle, www.sportingnews.com/nfl/ scoreboard/20021117/recap/21.html.

(7) In Whiddon v. State, 539 So. 2d 586 (Fla. 1st D.C.A. 1989), the First District held that a compound fracture of the victim's leg constituted a severe victim injury. Although the decision in Whiddon was made in the sentencing context, it suggests that a compound fracture may constitute a serious bodily injury under [section] 316.1933(1).

(8) Schreiber, 835 So. 2d at 348.

(9) Catt, 28 Fla. L. Weekly at D341.

(10) FLA. STAT. [section] 316.1933(1)(a) (2002); Catt, 28 Fla. L. Weekly at D341.

(11) Catt, 28 Fla. L. Weekly at D341.

Richard C. Valuntas is an assistant attorney general in the criminal appeals division of the attorney general's office in West Palm Beach. He graduated from Florida State University with a B.S. in criminology, magna cum laude, an M.S. in criminology, and a J.D., magna cum laude. Mr. Valuntas also graduated from Florida Atlantic University with a masters in public administration.

This column is submitted on behalf of the Criminal Law Section, Stephen M. Everhart, chair, and Georgina Jimenez-Orosa, editor.