       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           BYRON MCGRAW,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-232

                             [April 1, 2020]

  Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Leonard Hanser, Judge; L.T. Case No. 50-2016-CT-
013594-AXXX-NB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.

        ON REMAND FROM THE FLORIDA SUPREME COURT

KUNTZ, J.

   On March 21, 2018, we answered in the affirmative the following
rephrased question from the county court:

      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      deemed not to have withdrawn his or her consent to [a blood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?

McGraw v. State (McGraw I), 245 So. 3d 760, 762 (Fla. 4th DCA 2018)
(alteration in original). Based on our answering the rephrased certified
question in the affirmative, we affirmed the county court’s denial of the
Defendant’s motion to suppress. 1 Id. Later, we certified a question of great
public importance to the Florida Supreme Court. Id. at 777-78 (on motion
for certification of question).

    While the appeal from our certified question was pending in the Florida
Supreme Court, 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.” McGraw
v. State (McGraw II), No. SC18-792, 2019 WL 6333909, at *1 (Fla. Nov. 27,
2019) (citing Mitchell v. Wisconsin, 139 S. Ct. 2525, 2531-32, 2539 (2019)).

   In Mitchell, the United States Supreme Court issued a plurality opinion
written by Justice Alito, and joined by three justices, that concluded:

      When police have probable cause to believe a person has
      committed a drunk-driving offense and the driver’s
      unconsciousness or stupor requires him to be taken to the
      hospital or similar facility before police have a reasonable
      opportunity to administer a standard evidentiary breath test,
      they may almost always order a warrantless blood test to
      measure the driver’s BAC without offending the Fourth
      Amendment.

Mitchell, 139 S. Ct. at 2539 (plurality opinion). But the plurality 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. (plurality opinion). Because Mitchell did not have an
opportunity to present that argument in the trial court, the United States
Supreme Court vacated the Wisconsin Supreme Court’s decision and
remanded the case for further proceedings. Id. (plurality opinion).

   Justice Thomas concurred in the Court’s judgment. Id. He explained
that the Court adopted a “difficult-to-administer rule” and that a per se
rule allowing a warrantless blood draw from an unconscious driver was
the “better” way to resolve the case. Id. (Thomas, J., concurring in
judgment) (quoting Birchfield v. North Dakota, 136 S. Ct. 2160, 2197 (2016)
————————————————————————————————————
1Judge Gross dissented from our holding in McGraw I. 245 So. 3d at 770 (Gross,
J., dissenting in part, concurring in part). But he concurred in the Court’s
decision to grant the motion to certify the question as one of great public
importance. Id. at 778 n.1 (on motion for certification of question).

                                      2
(Thomas, J., concurring in judgment in part and dissenting in part)). He
concurred only in the judgment in Mitchell because the plurality “adopt[ed]
a rule more likely to confuse than clarify.” Id. at 2541 (Thomas, J.,
concurring in judgment).

   Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.
Id. She wrote that “the plurality needlessly casts aside the established
protections of the warrant requirement in favor of a brand new
presumption of exigent circumstances that Wisconsin does not urge[] . . .
.” Id. (Sotomayor, J., dissenting).

   Finally, Justice Gorsuch dissented on different grounds, explaining
that he “would have dismissed this case as improvidently granted and
waited for a case presenting the exigent circumstances question.” Id. at
2551 (Gorsuch, J., dissenting).

    After the United States Supreme Court issued its judgment in Mitchell,
the Florida Supreme Court vacated McGraw I. McGraw II, 2019 WL
6333909, at *3. The Florida Supreme Court held that “[b]ecause this case
falls squarely within the rule announced in Mitchell, the warrantless blood
draw in this case appears to be legal.” Id. But, “[c]onsistent with Mitchell,”
the court also

        remand[ed] 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.

Id.

   As directed, we remand this case to the county court for further
proceedings not inconsistent with the Florida Supreme Court’s opinion.

      Remanded for further proceedings.

GROSS and GERBER, JJ., concur.

                             *        *         *

      Not final until disposition of timely filed motion for rehearing.


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