          Supreme Court of Florida
                                   ____________

                                   No. SC18-792
                                   ____________

                               BYRON MCGRAW,
                                  Petitioner,

                                         vs.

                              STATE OF FLORIDA,
                                  Respondent.

                              November 27, 2019
                            CORRECTED OPINION

LAWSON, J.

      This case is before the Court for review of the decision of the Fourth District

Court of Appeal in McGraw v. State, 245 So. 3d 760 (Fla. 4th DCA 2018). In its

decision the district court ruled upon the following question, which the court

certified to be of great public importance:

      Under the Fourth Amendment, may a warrantless blood draw of an
      unconscious person, incapable of giving actual consent, be pursuant to
      section 316.1932(1)(c), Florida Statutes (2016) (“Any person who is
      incapable of refusal by reason of unconsciousness or other mental or
      physical condition is deemed not to have withdrawn his or her consent
      to [a blood draw and testing].”), so that an unconscious defendant can
      be said to have “consented” to the blood draw?
Id. at 777-78. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. During the

pendency of this appeal the United States Supreme Court considered a materially

indistinguishable issue relating to a similar Wisconsin statute and vacated the

Wisconsin Supreme Court’s decision, which had analyzed the Fourth Amendment

issue using the “consent” framework of the statute. Mitchell v. Wisconsin, 139 S.

Ct. 2525, 2531-32, 2539 (2019). Instead, a plurality of the United States Supreme

Court held that when law enforcement has a reasonable basis to believe that an

unconscious driver was intoxicated while driving, the exigent circumstances

created by the natural metabolization of alcohol in the blood stream combined with

the driver’s unconsciousness “almost always” permits law enforcement to secure a

blood sample for blood alcohol testing without a warrant. Id. at 2531, 2539. For

this reason, we decline to address the certified question as framed, apply Mitchell,

vacate the Fourth District’s decision, and remand for further proceedings.

                                 BACKGROUND

                                    I. McGraw

      Byron McGraw, a licensed Florida driver, was injured and rendered

unconscious in a single-car rollover accident. McGraw, 245 So. 3d at 762. A

police officer with the Riviera Beach Police Department investigated the crash,

where he smelled alcohol on McGraw’s skin, clothing, and car. Id. McGraw was

transported to a hospital, and the officer followed. Id. Once the medical


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professionals completed their initial treatment of McGraw, the officer requested a

blood sample because he was investigating a possible DUI case and McGraw

remained unconscious. Id. The officer did not seek to obtain a search warrant for

the blood draw, nor did he contact any fellow officers about acquiring a search

warrant. A hospital nurse then drew McGraw’s blood. The blood draw kit was

later tested, showing a blood alcohol content (BAC) significantly above the legal

limit.

         The State subsequently arrested and charged McGraw with two counts of

driving under the influence causing or contributing to injury to person or property.

McGraw filed a motion to suppress the results of the blood test, arguing that the

warrantless blood draw violated the Fourth Amendment because he had not

consented to the search. At the evidentiary hearing, the State argued that the

search was justified under Florida’s implied consent law, section 316.1932(1)(c),

Florida Statutes (2016), which provides that unconscious drivers are deemed not to

have withdrawn implied consent to the draw. The trial court denied the motion,

holding that although a Fourth Amendment violation occurred, the officer’s

reliance on the statute to draw McGraw’s blood was reasonable under the good-

faith exception to the exclusionary rule. The trial court concluded that the relevant

provision of the implied consent law was unconstitutional because it did not

provide the type of actual consent necessary under the Fourth Amendment. The


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trial court also concluded that the exigent circumstances exception to the warrant

requirement did not apply.

      On appeal, the Fourth District held that section 316.1932(1)(c) was valid and

that the blood draw was constitutional. The district court reasoned that the United

States Supreme Court’s precedent in Birchfield v. North Dakota, 136 S. Ct. 2160

(2016), specifically approved of the constitutionality of implied consent statutes

imposing civil and evidentiary penalties for refusing a chemical test, and that

section 316.1932(1)(c) was valid under the Fourth Amendment because it imposed

those penalties. The district court therefore affirmed the trial court’s denial of

McGraw’s motion to suppress, finding the blood draw constitutional based upon

McGraw’s implied consent, and certified the question of great public importance to

this Court.

                   II. United States Supreme Court Precedent

      As explained above, this Fourth Amendment issue was addressed by the

United States Supreme Court in Mitchell. As in our case, Mitchell involved a

warrantless blood draw from an unconscious DUI suspect. State v. Mitchell, 914

N.W.2d 151, 154 (Wis. 2018). The Wisconsin Supreme Court upheld the blood

draw, concluding that it was reasonable because both Wisconsin’s implied consent

statute and the driver’s choice to drive on state highways rendered his implied

consent to search constitutionally sufficient. Id. at 162. This is similar to the


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rationale that the Fourth District employed below. McGraw, 245 So. 3d at 766-67,

769-70. The United States Supreme Court granted certiorari to decide “[w]hether a

statute authorizing a blood draw from an unconscious motorist provides an

exception to the Fourth Amendment warrant requirement.” Mitchell, 139 S. Ct. at

2532.

        The United States Supreme Court vacated the decision of the Wisconsin

Supreme Court and held that a DUI suspect’s unconsciousness, combined with the

necessity for a blood draw when an “evidentiary breath test” cannot be

administered, creates a sufficient urgency to justify a warrantless blood draw under

the exigent circumstances exception to the warrant requirement. Id. at 2536-39.

The plurality opinion explained:

        [E]xigency exists when (1) BAC evidence is dissipating and (2) some
        other factor creates pressing health, safety, or law enforcement needs
        that would take priority over a warrant application. Both conditions
        are met when a drunk-driving suspect is unconscious . . . [such that] a
        warrantless blood draw is lawful.

Id. at 2537.

        The plurality opinion also made clear that the Supreme Court was

“adopt[ing] a rule for an entire category of cases—those in which a motorist

believed to have driven under the influence of alcohol is unconscious and thus

cannot be given a breath test.” Id. at 2534 n.2; see also id. (“This rule is not based

on what happened in petitioner’s particular case but on the circumstances generally


                                         -5-
present in cases that fall within the scope of the rule.”). Despite its express

adoption of a rule “almost always” authorizing warrantless blood draws on

unconscious DUI suspects under the exigent circumstances exception to the

warrant requirement, id. at 2531, 2539, the Supreme Court did “not rule out the

possibility that in an unusual case a defendant would be able to show that his blood

would not have been drawn if police had not been seeking BAC information, and

that police could not have reasonably judged that a warrant application would

interfere with other pressing needs or duties,” id. at 2539. “Because Mitchell did

not have a chance to attempt to make that showing,” the Supreme Court

determined that “a remand for that purpose [was] necessary.” Id.

                                     ANALYSIS

      The Fourth Amendment to the United States Constitution protects the rights

of people to be free of unreasonable searches and seizures, U.S. Const. amend. IV,

and a blood alcohol test is a “search,” Birchfield, 136 S. Ct. at 2173. We are bound

to follow United States Supreme Court precedent construing the Fourth

Amendment. U.S. Const., art. VI, cl. 2. Additionally, under the applicable

conformity clause in the Florida Constitution, we must interpret the comparable

provision in Florida’s constitution in conformity with the Supreme Court’s Fourth

Amendment jurisprudence. See art. I, § 12, Fla. Const.; see also State v. Butler,




                                         -6-
655 So. 2d 1123, 1125 (Fla. 1995) (“This Court is bound, on search and seizure

issues, to follow the opinions of the United States Supreme Court . . . .”).

      Because this case falls squarely within the rule announced in Mitchell, the

warrantless blood draw in this case appears to be legal. Consistent with Mitchell,

however, we also vacate the decision of the Fourth District below and remand with

directions that the case be remanded to the County Court of Palm Beach County so

that McGraw can be given an opportunity to demonstrate that his blood would not

have been drawn if police had not been seeking BAC information, and that police

could not have reasonably judged that a warrant application would interfere with

other pressing needs or duties.

      It is so ordered.

CANADY, C.J., and POLSTON, LAGOA, and MUÑIZ, JJ., concur.
LABARGA, J. concurs with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

LABARGA, J., concurring.

      As stated in the majority opinion, this Court has a constitutional obligation

to decide Fourth Amendment search and seizure issues in a manner consistent with

the decisions of the United States Supreme Court. Consequently, in light of the

Supreme Court’s decision in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), I

concur with the majority.


                                         -7-
Application for Review of the Decision of the District Court of Appeal –
Discretionary Jurisdiction/Certified Great Public Importance

      Fourth District - Case No. 4D17-232

      (Palm Beach County)

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public
Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,

      for Petitioner

Ashley Moody, Attorney General, Tallahassee, Florida, and Celia A. Terenzio,
Bureau Chief, and Richard Valuntas, Assistant Attorney General, West Palm
Beach, Florida,

      for Respondent

Flem K. Whited, III of Whited Law Firm, Daytona Beach, Florida,

      for Amicus Curiae National College for DUI Defense




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