STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
J. T. BYRNE, )
)
Petitioner, )
)
vs. ) CASE NO. 77-440
)
DEPARTMENT OF HIGHWAY )
SAFETY & MOTOR VEHICLES, )
FLORIDA HIGHWAY PATROL, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in Room 338, Orange County Courthouse, Orlando, Florida, at 10:00 A.M. on April 12, 1977, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter came on for formal hearing upon the appeal to the Career Service Commission by J. T. Byrne of his disciplinary suspension for sixteen (16) hours upon the grounds stated in the disciplinary letter dated January 17, 1977, as amplified by the Statement of Particulars filed on April 4, 1977, by the Department.
APPEARANCES
For Petitioner: William R. Sharpe, Esquire
29 East Pine Street Orlando, Florida 32801
For Respondent: Ed Strickland, Esquire
Kirkman Building Tallahassee, Florida 32304
ISSUE
The issued involved is whether the Florida Highway Patrol had good cause for the suspension of Trooper Byrne. The factual grounds stated in the Statement of Particulars for the action taken was as follows:
Byrne was negligent in delaying approximately four (4) hours administering a blood alcohol test to the driver of the vehicle involved in a fatal accident.
The blood alcohol test, when administered, was not administered in the presence and under the supervision or control of a trooper inasmuch as the driver had been turned over to his father at the jail.
Byrne did not notify or request the Florida Highway Patrol dispatcher to notify the medical examiner that a blood alcohol test was needed.
Byrne failed to notify the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge from the Grand Jury's proposed report that portion of the report critical of the manner the investigation was handled.
Trooper Byrne failed to obtain the names and addresses of all witnesses to the accident.
The diagram prepared by Trooper Byrne in his initial accident report does not properly reflect painted median in the roadway or a left turn lane for eastbound traffic. Further, the diagram does not show the north edge of the roadway widens to accommodate room for a left turn lane and no passing zone is not properly drawn in relationship to the location of the speed sign shown in the diagram.
FINDINGS OF FACT
J. T. Byrne is a Florida Highway Patrol trooper and has permanent career service status in his position. Byrne was suspended for sixteen (16) hours by a letter to him from Colonel J. E. Beach dated January 17, 1977. Byrne filed a timely appeal of his suspension to the Career Service Commission which forwarded this matter to the Division of Administrative Hearings to conduct a formal hearing.
On June 5, 1976, at approximately 1:15 A.M., Trooper J. T. Byrne was dispatched to an accident scene on FTU Boulevard approximately one tenth of a mile west of its intersection with State Road 520. Upon his arrival at the scene there were Florida Technological University police, sheriff's deputies, and emergency vehicles already present. One of the enforcement officers present advised Byrne that there had been a fatality. Byrne checked the victim then called his dispatcher to advise the dispatcher that a medical examiner and a Florida Highway Patrol homicide investigator would be needed. Immediately thereafter, the driver of the car involved, Edward Romfh Kirkland, Jr., was introduced to Byrne by one of the enforcement officers at the scene who gave Kirkland, Jr.'s driver license to Byrne. Byrne spoke with Kirkland, Jr., and noted his appearance. Kirkland, Jr. was unsteady on his feet, emotionally upset and was crying. Byrne smelled alcoholic beverage on Kirkland, Jr.'s breath. Byrne placed Kirkland in his patrol car and commenced his accident investigation. The accident investigation included interviews with the victim's brother, an eyewitness observer, and Kirkland, Jr. Byrne also prepared a sketch and a verbal description of the scene. Byrne administered a field sobriety to Kirkland, Jr. after conducting his accident investigation. Kirkland, Jr. performed these tests in a manner which would indicate that his faculties were not impaired. Byrne, with the assistance of other officers, obtained the name of only one eyewitness although inquiries were made of many observers at the scene.
At approximately 1:45 A.M. Trooper Fuller Baker, Homicide investigator, arrived at the scene and began his investigation which was separate and distinct from the accident investigation conducted by Byrne. Baker also administered a field sobriety test to Kirkland, Jr. and reached the conclusion that Kirkland, Jr.'s faculties were not impaired.
The homicide investigation is a very detailed investigation of the facts surrounding a death involving operation of a motor vehicle. As opposed to an accident investigation which is from one to three pages in length, the homicide investigation may be thirty-five to forty pages long. The homicide
report is a long term detailed investigation for the purpose of gathering information upon which to evaluate and base any criminal prosecution. The accident report, which is privileged by law (see Conclusions of Law), is primarily used for statistical evaluation of motor vehicle accidents.
Having completed his investigation, Byrne placed Kirkland, Jr. under arrest at the scene and took him to the sheriff's Department to conduct a breathalyzer examination. In route to the Sheriff's Department, Kirkland, Jr. told Byrne that he had been assaulted and knocked unconscious by victim's brother following the accident and prior to Byrne's arrival at the scene.
Arriving at the Sheriff's Department, Byrne was met by Edward Rohmf Kirkland, Sr., an attorney at law, who was present representing his son. When Kirkland, Sr. learned that his son was going to be given a breathalyzer examination, he indicated that he wanted to have a blood analysis done on his son. Byrne indicated to Kirkland, Sr. that such a test would be desirable, and he would permit such a test to be performed. At this time, Trooper Baker arrived at the Sheriff's Department and spoke with Byrne outside the hearing of the Kirklands. Baker asked Byrne with what offense he had charged Kirkland, Jr. Byrne stated that he had arrested him for driving while under the influence. They discussed the condition of Kirkland, Jr., and both agreed that he did not appear to have his faculties impaired. Byrne was of the opinion, however, that a test should be run as a precaution and Kirkland, Jr. charged if the test was positive. As the accident investigator, Byrne did not feel he should give the test because for him to do so could have created problems concerning the admissibility of the evidence at a subsequent criminal prosecution. Baker concurred in Byrne's analysis, but Baker did not feel that the condition of Kirkland, Jr. was such to form probable cause for administration of a breathalyzer examination. Baker suggested that Byrne charge Kirkland, Jr. with a charge which could be proven, driving too fast for conditions, and release him to his father, an attorney, who had indicated he was going to have a voluntary blood analysis performed. Subsequent to their conversation, Byrne charged Kirkland with the civil charge of driving too fast for conditions and released Kirkland, Jr. At that time Byrne left the Sheriff's Department, leaving Kirkland, Jr. and his father in the presence of Trooper Baker. Byrne thought that Baker would follow through and accompany the Kirklands to the blood analysis as a part of the homicide investigation. Baker did not follow through with the examination.
Subsequently, the victim's father was the source of derogatory comments regarding the handling of the investigation of his daughter's death. Because of this, the matter was presented to the Orange County Grand Jury, whose report indicated insufficient evidence existed to prosecute Edward Romfh Kirkland, Jr., but which report was critical of the handling of the homicide investigation. Both Troopers Byrne and Baker received copies of the report and attached Court Order. Byrne and his immediate supervisor, Sergeant W. E. Sunberg, Jr., discussed the Grand Jury's report and the criticisms therein.
Subsequently both Baker and Byrne received suspensions by the Florida Highway Patrol.
With regard to the allegation that Trooper Byrne failed to advise the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge the Grand Jury's criticism, the Hearing Officer finds that substantial and competent evidence indicates that Trooper Byrne's immediate supervisor was advised of the criticisms of the Grand Jury. In addition, the Court's directions concerning a
Motion to Repress or expunge the report of the Grand Jury does not create any right in the Department to repress or expunge any portion of the report.
Further, there was no criticism levied against Trooper Byrne in the Grand Jury report.
Regarding the allegation that Trooper Byrne failed to notify the dispatcher to advise a medical examiner of the necessity of blood alcohol testing, the memorandum upon which this requirement is based was not introduced into evidence. Testimony regarding the requirements created by the memorandum was received. The requirements of such a notification would only be applicable in a factual situation in which a victim or suspect would be unable to take a breathalyzer examination. The facts indicate that there was nothing about the victim's condition which would warrant a test for blood alcohol content, and Kirkland, Jr. was able to take the breathalyzer. Therefore, the factual situation did not necessitate Trooper Byrne advising the medical examiner of the possibility of blood analysis testing.
The uncontroverted testimony of Byrne was that he and other officers in attendance at the scene did interview many observers at the scene and could only discover the one witness to the accident. The basis for the allegation that Byrne failed to obtain the names of all of the witnesses was based upon the fact that the victim's father hired a private investigator who later discovered two additional witnesses. The evidence, however, indicates that it took several minutes for Byrne to arrive at the accident scene and there is no evidence that the witnesses later discovered by the private investigator were at the accident scene when Byrne arrived.
A comparison of Exhibit 4, the first diagram prepared by Byrne the night of the accident, with Exhibit 5, the diagram prepared by Byrne several months later, indicates several differences. Clearly, the shape of the road, the left turn lane at the intersection, and the position of the speed sign were immaterial to the accident. Both diagrams depict essentially the same salient facts, to wit: the location of the initial impact, the path of the vehicle, the final location of the victim, and the fact the vehicle completed its passing after entering the no passing zone. The initial diagram was supplemented by a written description and measurements which are a part of the accident investigation report. The initial diagram was sufficiently accurate for the purposes of that report when considered with Byrne's written report and measurements. There is no requirement that the diagram of an accident investigation report be a scaled drawing. In the absence of such a requirement, the diagram must be considered sufficient if it contains that data necessary to give the reader an accurate depiction of the events before, during, and after the accident. Byrne's original diagram, together with the written narrative which is part of the diagram, presented this information. While Byrne's second diagram is more detailed, his first diagram is not sufficiently inaccurate to mislead or misstate the actual operative facts.
Regarding the allegations that Byrne was negligent in the blood alcohol testing of Kirkland, Jr., it should be noted that Byrne arrived on the scene at 1:15 A.M. and began his actual accident investigation at approximately 1:45 A.M. He was at the Sheriff's Department with Kirkland at approximately 2:45 to 3:00 A.M. based upon the testimony that Trooper Byrne left the Sheriff's Department at 3:17 A.M. One and one half hours to investigate an accident and transport Kirkland, Jr. to the Sheriff's Department does not appear to be an excessive delay.
Regarding the allegation that Byrne failed to follow through and supervise and control the blood alcohol testing of Kirkland, Jr., although Byrne had arrested Kirkland, Jr. at the scene for driving while under the influence of alcoholic beverages, it was both Byrne's and Baker's opinion that they had no probable cause for administration of chemical blood tests. Baker was of the opinion that Kirkland, Jr. had not been driving under the influence of alcoholic beverages, while Byrne, having initially based his opinion that Kirkland was driving under the influence upon the smell of alcoholic beverages on Kirkland's breath and Kirkland's unsteadiness on his feet, changed that opinion based upon the additional information obtained from Kirkland, Jr. while transporting him to the Sheriff's Department that Kirkland, Jr. had been knocked unconscious by the victim's brother. Both officers had administered field sobriety tests to Kirkland, Jr., whose performance on the tests indicated that his faculties were not impaired. Further, the testimony of both troopers and two state's attorneys indicated that although Byrne was the arresting officer and the officer who transported Kirkland to the Sheriff's Department, Byrne was not the preferred officer to administer chemical blood tests to Kirkland, Jr. The administration of such tests by the officer in charge of the accident investigation creates admissibility problems regarding any evidence derived from the testing period (See Conclusions of Law below.) Trooper Baker, as the homicide investigator present, would have been the preferred officer to give and supervise the test.
Regarding the allegation that Trooper Byrne released Kirkland, Jr. into the custody of his father, this was not demonstrated. Kirkland, Jr. is over 21 years of age and therefore was not released into anyone's custody but was released on his own recognizance in accordance with the prevailing procedures in Orange County. Although his father was present at the Sheriff's Department, it is clear that he was present in his capacity as his son's attorney.
CONCLUSIONS OF LAW
Section 316.066, Florida Statutes, provides that accident investigation reports may not be used in any criminal or civil trial.
Section 316.017, Florida Statutes, authorizes a police officer to arrest any driver involved in an accident at the accident scene when, based upon his personal investigation, he has reasonable and probable grounds to believe that the driver has committed any offense in Chapter 316, Florida Statutes.
Section 322.261(1)(a), Florida Statutes, provides that a driver is deemed to have consented to an approved chemical test for blood alcohol content if he is lawfully arrested for any offense by a peace officer while driving under the influence of an alcoholic beverage. The test must be administered instant to a lawful arrest and administered at the request of a peace officer having reasonable cause to believe such a person was driving under the influence of an alcoholic beverage. The statute does not require the peace officer who arrested the driver be the one who demands the test. Section 322.261(1)(b), Florida Statutes, provides that if the peace officer has reason to believe the person's ability to operate a motor vehicle is impaired by alcohol he may, with the person's consent or the person may demand, a prearrest breath test. The evidence of such a test may not be admitted into evidence in any subsequent civil or criminal proceeding.
Section 322.261(1)(c), Florida Statutes, provides that a person who is unable to refuse testing, is deemed to have consented to blood testing, and if
incapable of taking the chemical breath test, the individual is deemed to have consented to an approved blood test.
In a proceeding to automatically suspend an individual's drivers license for refusal to take the chemical test, the first two elements considered by the Court will be whether the officer had reasonable cause to believe the individual had been driving under the influence of an alcoholic beverage, and whether he was placed under lawful arrest. See Section 322.261 (1)(e), Florida Statutes.
The demand for chemical (breath) blood testing requires two conditions preceding: one, a lawful arrest for any offense, and two, reasonable cause by the officer making the demand that the individual was driving a motor vehicle under the influence of an alcoholic beverage. In the instant case, after their arrival at the jail, both officers felt they lacked reasonable cause. Trooper Baker had never formed the opinion that Kirkland, Jr. was driving under the influence, and Byrne, who had based his original opinion on Kirkland, Jr.'s unsteadiness on his feet, reevaluated his conclusion based upon Kirkland, Jr.'s statement that he had been knocked unconscious at the scene by the victim's brother. A lack of reasonable cause was the essence of the troopers' discussion at the Sheriff's Department.
The statutes referenced above indicate that where less than reasonable cause exists, but the officer has reason to believe the person was driving under the influence, the driver may be asked to voluntarily take a test. If the driver consents, the evidence of the test may not be introduced at any subsequent civil or criminal proceeding. It would appear that the provisions of Section 322.261(1)(b)1. would be applicable to Kirkland, Jr.'s case. In the absence of sufficient reasonable grounds or probable cause on the part of the arresting officer or on the part of Trooper Baker that Kirkland, Jr. had been driving while under the influence of an alcoholic beverage, any test administered to determine Kirkland's blood alcohol level would have been voluntary and the resulting evidence could not have been admitted in any criminal or civil proceeding.
Certainly Trooper Baker and Trooper Byrne were experienced law enforcement officers specializing in the enforcement of traffic laws. The testimony of both officers indicates that neither felt he had probable or reasonable grounds to believe that Kirkland, Jr. had been driving under the influence of alcoholic beverages. Trooper Byrne had reason to believe that Kirkland, Jr. had been drinking, but this was short of the reasonable or probable cause required by Section 322.261(1)(a), Florida Statutes. In the absence of probable cause it would have been improper to demand that Kirkland, Jr. take the chemical breath test.
The burden to go forward and the burden to show by substantial and competent evidence that the disciplinary action taken against Trooper Byrne lies on the agency. In the absence of substantial and competent evidence indicating good cause for the disciplinary action taken, the action should not be sustained.
Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission not sustain the disciplinary action taken by the agency.
DONE and ORDERED this 27th day of April, 1977, in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1977.
COPIES FURNISHED:
Ed Strickland, Esquire Kirkman Building Tallahassee, Florida 32304
William R. Sharpe, Esquire
29 East Pine Street Orlando, Florida 32801
Mrs. Dorothy Roberts Appeals Coordinator
Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
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AGENCY FINAL ORDER
=================================================================
BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA
IN THE APPEAL OF
T. BYRNE
DOCKET NO. 77-22
against SUSPENSION DOAH CASE NO. 77-440
by the DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, FLORIDA HIGHWAY PATROL
/
OPINION AND ORDER
Chairman Catherine W. Chapin and Members Edwin G. Fraser and Clare C. Leiby participating.
STATEMENT OF CASE
The Career Service Commission having received the Department of Administration hearing officer's Recommended Order dated April 27, 1977, and the Exceptions filed by the Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, dated May 6, 1977, reviewed same in its public meetings of May 21, 1977. The Commission being unable to reach a decision based only upon the Recommended Order and Exceptions, requested transcription of the evidentiary hearing held before the hearing officer April 12,1977. The transcript was received in the Commission's office June 30, 1977 and the decision of the Commission was rendered in a public meeting on August 24, 1977. Those members of the Commission participating in all phases of the decision are Chapin, Fraser and Leiby.
ISSUE
The issue involved is whether the Florida Highway Patrol had good cause for the suspension of Trooper Byrne for 16 hours based upon the grounds stated in the disciplinary letter dated January 17, 1977, as amplified by the statement of particulars filed April 4, 1977, by the Department which are as follows:
Byrne was negligent in delaying approximately four (4) hours administering a blood alcohol test to the driver of the vehicle involved in a fatal accident.
The blood alcohol test, when administered, was not administered in the presence and under the supervision or control of a trooper inasmuch as the driver had been turned over to his father at the jail.
Byrne did not notify or request the Florida Highway Patrol dispatcher to notify the medical examiner that a blood alcohol test was needed.
Byrne failed to notify the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge from the Grand Jury's proposed report that portion of the report critical of the manner the investigation was handled.
Trooper Byrne failed to obtain the names and addresses of all witnesses to the accident.
The diagram prepared by Trooper Byrne in his initial accident report does not properly reflect painted median in the roadway or a left turn lane for eastbound traffic. Further, the diagram does not show the north edge of the roadway widens to accommodate room for a left turn lane and the passing zone is not properly drawn in relationship to the location of the speed sign shown in the diagram.
PRELIMINARY STATEMENT
Upon review of the complete record, the Commission must reject and modify the Hearing Officer's Findings of Fact. For the most part, the Commission has modified the Hearing Officer's Order to reflect additional facts contained in
the record and supported by competent, substantial evidence, but overlooked by the Hearing Of ficer's Findings of Facts. Number 2, regarding time of day, is rejected for lack of competent substantial evidence and the Commission's findings reflects the evidence contained in the record. The statement of Byrne is incorporated inasmuch as it appears to be an undisputed account of events as supported by competent evidence and more accurately reflects the sequence of events. Number's 3 and 4 are unchanged. Number 5 is modified to reflect the evidence presented in the record. Number's 6, 7 and 8 are accepted.
Regarding Number's 9, 10, 11 and 12, it does appear that competent substantial evidence exists to support those findings. However, this Commission, given the same set of circumstances would have reached other findings. Number
13 is modified to reflect the correct times as stated in Number 2. Parts of Number 14 are rejected for lack of competent substantial evidence, to wit: Byrne was of the opinion that probable cause for administration of the chemical tests existed as evidenced by his testimony and the actual, lawful DUI arrest. There was no evidence that Kirkland was knocked unconscious. The Hearing Officer's discussion of the "preferred" officer to administer chemical blood tests to Kirkland, Jr. does not make reference to which charges are being
discussed and the Commission would refer to its Conclusions of Law below. Number
15 is accepted. Copy of the Recommended Order is attached hereto and made a part hereof by reference.
FINDINGS OF FACT
J. T. Byrne is a Florida Highway Patrol trooper and has permanent Career Service status in his position. Byrne was suspended for sixteen (16) hours by a letter to him from Colonel J. E. Beach, dated January 17, 1977. Byrne filed a timely appeal of his suspension to the Career Service Commission which forwarded this matter to the Division of Administrative Hearings to conduct a formal hearing.
The testimony of Sergeant Sundberg, (T-64) of Byrnes himself (T-69), the memorandum prepared by Byrnes (Exhibit 6) and the accident report prepared by Byrnes (Exhibit 3) all indicate that on June 5, 1976, Trooper Byrne was notified of an accident at approximately 1:08 a.m. and arrived on the scene at 1:20 a.m.
The written statement by Trooper Byrnes (Exhibit 6) presents the most accurate description of the sequence of events.
"On June 5, 1976, at approximately 1:08 a.m., I was on routine patrol and was notified via FHP radio that there was an accident on F.T.U. Boulevard in the vicinity of Alfaya Trail,
(SR-S-520). While enroute to the scene, I was further notified that there was a fatality involved in the accident. Upon arrival at the scene at 1:20 a.m., I was met by several rescue and police units that were already on the scene. Upon arrival, I noticed a body lying in the roadway in the westbound lane and a check, by myself, showed no indication of any vital signs. The rescue attendants, from Union Park Rescue, advised that they had also checked the body and found it to show no vital signs and appeared to be dead. The FHP
station was notified by myself of the fatality and advised to contact the Medical Examiners Office to send either the M.E., Associate M.E., or an investigator to remove the body. The station was then advised to contact a supervisor to assign a Homicide Investigator.
"After the proper people were notified, I began to conduct an accident investigation. I was advised by the F.T.U. Police that the driver was Edward Romfh Kirkland, Jr. and the
F.T.U. Police officer gave me Kirkland's driver's license. I spoke with the driver briefly and had him take a seat in my patrol unit and directed FHP-auxiliaryman Gary Smith to sit with Kirkland in the car but to have no conversation with him. At this time I continued to gather information for my accident report, to include information from the vehicle, information from a witness, information from Thomas McAfee, (brother of the victim and pedestrian $2 on the accident report). I then returned to the car to speak with Kirkland to obtain information for the accident report. While in conversation with Kirkland, it became apparent to me that he had been drinking because of an odor of alcohol about his breath.
"Other that the witness indicated on the accident report, there were no other witnesses at the scene. Several people in the vicinity were questioned as to whether or not they were a witness or were involved and there was no one indicating any knowledge of the incident.
"Trooper F. R. Baker and Doctor Ruiz of the Orange County Medical Examiners Office had arrived on the scene. I spoke with Trooper Baker and advised him of the basics as I know them. Trooper Baker asked what my intentions were for Kirkland and I advised him I felt as if he may be under the influence and that a blood alcohol should be done. Trooper Baker advised me that if Kirkland was not injured that a breathalyzer would be the proper means. In order for me to obtain a breathalyzer from Kirkland, it was necessary for me to place him under arrest, inform him of his rights under the Miranda decision and also his implied consent under Fla. SS 322.261. Edward Romfh Kirkland, Jr. understood his rights and warnings and was placed under arrest and transported to the Orange County jail. While enroute to the jail, the FHP station notified Edward Romfh Kirkland, Sr., at my direction, that we were enroute and upon arrival we were
met in the sallyport by Edward Romfh Kirkland, Sr. Edward Romfh Kirkland, Sr. asked what the charge was and I advised him that it was "Driving while under the influence of an alcoholic beverage". He then asked what the procedure would be and I advised him we were going to adnnister a breathalyzer. Mr. Edward Romfh Kirkland, Sr. suggested that a blood alcohol would be better and of course I agreed because blood alcohol is the best evidence. I advised Edward Romfh Kirkland, Sr. that as far as I was concerned the results of a blood alcohol would be preferred and also if we were to proceed with a blood alcohol that I would not go forth with the charge this night but would make a citation for a civic infraction now and one for the D. W. I. later if the blood alcohol warranted this."
Additionally, while at the scene of the accident, Trooper Byrne prepared a sketch and description of the scene. At approximately 3:00 a.m., Byrne administered field sobriety tests to Kirkland, Jr. which Kirkland, Jr., performed "very well". (T-78)
At approximately 1:45 a.m., Trooper Fuller Baker, Homicide Investigator, arrived at the scene and began his investigation which was separate and distinct from the accident investigation conducted by Byrne. Baker also administered a field sobriety test to Kirkland, Jr. and reached the conclusion that Kirkland, Jr.'s faculties were not impaired.
The homicide investigation is a very detailed investigation of the facts surrounding a death involving operation of a motor vehicle. As opposed to an accident investigation which is from one to three pages in length, the homicide investigation may be thirty-five to forty pages long. The homicide report is a long term detailed investigation for the purpose of gathering information upon which to evaluate and base any criminal prosecution. The accident report, which is privileged by law (see Conclusions of Law), is primarily used for statistical evaluation of motor vehicle accidents.
Having completed his investigation, Byrne placed Kirkland, Jr. under arrest at the scene for driving while intoxicated, advised him of his rights and took him to the Sheriff's Department to conduct a breathalyzer examination. In route to the sheriff's Department Kirkland, Jr. told Byrne he had been "struck about the face by Mr. McAfee (the victim's brother) and knocked to the ground" following the accident but prior to Byrne's arrival at the scene. (T-73,75)
Reference is made to the Recommended Order and the Preliminary Statement for Findings 6-15.
CONCLUSIONS OF LAW
The Commission does not accept the Hearing Officer's Conclusions of Law and adopts those conclusions 1 through 6 presented in the Department's Exceptions as the Commission's Conclusions of Law as hereinafter set forth:
Respondent admits Conclusions of Law in Paragraph Number 1.
Respondent admits Conclusions of Law in Paragraph Number 2.
Respondent admits that Section 322.261(1)(a), Florida Statutes provides that a driver is deemed to have consented to an approved chemical test for blood content if he is lawfully arrested for any offense by a peace officer while driving under the influence of an alcoholic beverage. The test must be administered incidental (not instant as alleged) to a lawful arrest and administered at the request of a peace officer having reasonable cause to believe such a person was driving under the influence of an alcoholic beverage.
Respondent would suggest that under the factual situation as exists in this case the arresting officer is the proper person to have the test performed under Section 322.261(1)(h), F.S. which provides
"If the arresting officer does not request a chemical test of the person arrested for any offense allegedly committed while the person was driving a motor vehicle while under the influence of alcoholic beverages, such person may request the arresting officer to have a chemical test made of the arrested person's breath for the purpose of determining the alcoholic content of the person's blood, and, if so requested, the arresting officer shall have the test performed." (e.s.)
Again in 322.261(2)(a), F.S., we find the following command, "The test determining the weight of alcohol in
the defendant's blood shall be administered at the direction of the arresting officer. . ."
Clearly there was an arrest made for driving while under the influence of alcoholic beverages by Trooper Byrne and he did not cause a breathalyzer test to be made under Section 322.261(1)(a) F.S. Neither did he cause under his direction a test to be made under Sections 322.261(1)(h) or 322.261(2)(a), F.S.
It should further be noted that Kirkland, Jr., did not have the right to select the test he wanted. State v. Smith, 241 So.2d 728. He did have the right under Section 322.261 (2)(c) to request a blood test, at his own expense, after taking a breathalyzer test given by the arresting officer. If the arresting officer does not request a chemical test Kirkland, Jr., would under Section 322.261(1)(h), F. S. have the right to request a chemical test of his breath.
The hearing officer's conclusions of law relating to a prearrest breath test are not applicable inasmuch as there was an arrest of Kirkland, Jr.
The hearing officer's Conclusions of Law under 322.261 (1)(c), F.S. relating to a person being incapable of refusing a test is not applicable inasmuch as the testimony and the Hearing Officer's finding in paragraph No. 10, clearly reveals Kirkland was capable of taking the breathalyzer test.
Respondent agrees with allegations in Paragraph No. 5 and would represent Trooper Byrne complied with same.
Respondent disagrees with the Hearing Officers's Conclusions of Law in regard to the request for a blood test.
Section 322.261(1)(a), F. S., provides for a chemical breath test of any person lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of alcoholic beverages.
Section 322.261(1)(h), F. S., provides that if the arresting officer does not request a chemical test of the person arrested "the arrested person may request the arresting officer to have a chemical test made of the arrested person's breath." (e.s.)
Section 322.261(2)(c), F. S., provides that a person tested may in addition to a test administered at the direction of a peace officer have an additional test administered.
Therefore, if the officer does not request a breathalyzer test under 322.261(1)(a), F. S., the arrested person may request a breathalyzer test under 322.261(1)(h). A blood test under 322.261(2)(c), F. S. at the request of an arrested person does not come into play unless the arrested person has performed, at the request of the arresting officer, a breathalyzer test.
It would clearly appear the Hearing Officer is in error when he says in the second paragraph of No. 6. "It would appear that the provisions of Section 322.261(1)(b)1 would be applicable to Kirkland, Jr.'s, case." A cursory reading of this section as follows clearly reveals the fallacy of this statement:
"Notwithstanding the provisions of this section, a law enforcement officer who has reason to believe that a person's ability to operate a motor vehicle is impaired by alcohol and that the person has been operating a motor vehicle during the period of such impairment may, with the person's consent, give, or the person may demand, a prearrest breath test for the purpose of determining if said person is in violation of s.316.028(1), but the taking of such prearrest breath test shall not be deemed a compliance with the provisions of paragraph (a). The results of any test administered under this section shall not be admissible into evidence in any civil or criminal proceeding. An analysis of a person's breath, in order to be considered valid under the provisions of this section, must have been performed according to methods approved by the (Department of Health and Rehabilitative Services). For this purpose,
the (department) is authorized to approve satisfactory techniques or methods."
The test provided for in this section is limited to a prearrest breath test voluntarily consented to or demanded by the suspect. A blood test does not come into play under this section and even if it did it is specifically provided that the results of a test under this section shall not be admissible into evidence in any civil or criminal proceeding. Therefore, had the reading at the hospital been fantastically high it could not have been used.
Again I would point out that there was an arrest and transportation to the jail for purpose of giving a breathalyzer test which was not performed.
The Commission further concludes:
As rebuttal to the failure to conduct a breathalyzer, the Petitioner Byrne raised the defense that a breathalyzer test conducted by the Accident Investigator (Byrne) rather than the Homicide Investigator (Baker) would be inadmissible based upon State v. Fernandez, 303 So.2d 58 (Fla. 4th DCA 1974).
The Commission does not accept the Petitioner's reasoning or position. The Fernandez case dealt with a blood test as opposed to a chemical test. Even the Assistant State Attorney called to testify was unable to clarify the case or apply it to the instant facts. Secondly, the question of inadmissibility of the breathalyzer related to a possible homicide charge and this would not have precluded or prejudiced the prosecution of a Driving Under the Influence charge. Also, breathalyzer results inadmissible for criminal court purposes and insufficient to sustain a criminal conviction, could have been admissible for purposes of the grand jury, civil or other proceedings. (See 322.262, F.S.) It seems plausible and permissible under the law that Byrne should and could have administered the chemical test in conjunction with his lawful arrest for DUI as soon as procedurally possible. The Homicide Investigator had informed Byrne that he, Baker, did not intend to pursue the DUI homicide aspects and the question of inadmissibility for purposes of a homicide did not exist.
Furthermore, a blood test could still have been taken subsequent to the breathalyzer. As it turns out the blood test which was finally administered was not supervised by an officer and it too had admissibility shortcomings.
Byrne was that officer who independently found probable cause and arrested Kirkland, Jr., for DUI at the scene of the accident. The Commission must and does find that Byrne's failure to administer or cause to have a breathalyzer administered to Kirkland, Jr., rather than or in addition to the delayed, inadmissible blood test, under the circumstances was negligence in performance of his duties and such constitutes good cause for the sixteen (16) hour suspension.
OPINION AND ORDER
Based upon the foregoing findings of fact and conclusions of law it is the opinion of this Commission that the Recommended Order of the Hearing Officer dated, April 27, 1977, be, and the same is, hereby rejected by this Commission and that the action of the Agency suspending the Petitioner was just and proper and should be sustained. Accordingly, it is
ORDERED that the action of the Agency suspending the Petitioner, J. T. Byrne, be and the same is, hereby sustained.
DONE AND ORDERED this 27th day of September, A.D., 1977.
CATHERINE W. CHAPIN, Chairman
Career Service Commission
CERTIFICATE OF SERVICE
I hereby certify that copy of the foregoing Order was forwarded by certified U.S. Mail, return receipt requested, to Mr. William Sharpe, Attorney at Law, 29 East Pine Street, Orlando, Florida 32801 and Mr. Ed Strickland, Attorney, Department of Highway Safety and Motor Vehicles, Neil Kirkman Building, Tallahassee, Florida 32304, this 30th day of September, A.D., 1977.
CAREER SERVICE COMMISSION
BY: June K. McPhaul
| Issue Date | Proceedings |
|---|---|
| Sep. 30, 1977 | Final Order filed. |
| Apr. 27, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 27, 1977 | Agency Final Order | |
| Apr. 27, 1977 | Recommended Order | Petitioner should not be suspended 16 hours for bungling an investigation. There is no proof he did not follow procedures. |
