       Third District Court of Appeal
                                State of Florida

                           Opinion filed January 17, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-2167
                          Lower Tribunal No. 08-23160
                              ________________


                                 Juan Aguilar,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Miguel M. de la
O, Judge.

      Jeffrey S. Weiner, P.A., and Jeffrey S. Weiner, Annabelle H. Nahra, and
Diego Weiner, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.


Before LAGOA, SALTER, and EMAS, JJ.*

      LAGOA, J.

* Judge Emas did not participate in oral argument.
      Juan Aguilar (“Aguilar”) appeals his conviction and sentence for various

driving under the influence (“DUI”) crimes arising out of a multi-vehicle accident

that resulted in the death of one person at the scene and serious bodily injury to

two others. Aguilar primarily challenges the admission of the results of a blood

alcohol test performed on blood samples warrantlessly obtained from him at Ryder

Trauma Center following his transport there for his injuries. Because we find no

error in the admission of the blood test results, we affirm as to Counts I, III, and V.

We reverse, however, with respect to Counts II and IV based on the State’s proper

concession of a violation of the double jeopardy clause. We affirm as to all other

issues raised by Aguilar.

I.    FACTUAL AND PROCEDURAL HISTORY

      On Sunday, December 9, 2007, at approximately 3:00 a.m., a three-car

accident occurred in the four westbound lanes of State Road 836 near the 27th

Avenue exit.     At approximately 3:11 a.m., Florida Highway Patrol Trooper

Bobadilla (“Trooper Bobadilla”) received a dispatch regarding this accident.

When he arrived at the scene, Miami Dade Expressway Authority (“MDX”) Road

Rangers had closed all but the far-left lane in order to allow law enforcement, fire

rescue units, and tow trucks to safely operate and clear the accident scene. A

board with an arrow pointing left was set up to notify drivers of the lane closures.




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      After investigating the scene, Trooper Bobadilla returned to his vehicle,

which had its emergency lights activated. At the same time, at approximately 4:22

a.m., an MDX Road Ranger adjusting traffic cones observed a black Ford

Mustang, driven by Aguilar, and another car racing at a high rate of speed

westbound into the single, open left lane near the scene of the original accident.

Within seconds, Trooper Bobadilla heard screeching tires and witnessed Aguilar

losing control of his Mustang, which careened into the original accident scene,

striking multiple cars and persons—one who died almost instantly, two who

suffered serious bodily injuries, and one who suffered minor injuries. After the

collision, Trooper Bobadilla walked the scene and observed skid marks consistent

with the driving pattern of Aguilar’s Mustang that were not present prior to the

second accident.

      Florida   Highway    Patrol   Trooper   Christopher   Adkinson    (“Trooper

Adkinson”) made contact with Aguilar at the scene of the accident, testifying that

Aguilar “was somewhat unresponsive, incoherent,” had “blood shot watery eyes,”

“slurred speech,” and “had odor of alcohol” coming from his person and his

vehicle. Trooper Adkinson gathered identification information from Aguilar, who

was subsequently extracted from his Mustang by a fire rescue unit and transported

to Ryder Trauma Center at Jackson Memorial Hospital with serious injuries,




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including a collapsed lung. Medical personnel at Ryder Trauma Center induced

Aguilar into a coma and intubated him shortly after his arrival.

      As there were “significant indicators” that Aguilar was displaying an

“alcohol related impairment,” Trooper Adkinson responded to Ryder Trauma

Center at approximately 5:09 a.m., in order to get a “blood draw.”         Trooper

Adkinson testified no effort was made to get a warrant because of “time restraints,”

including waiting for contact with the primary traffic homicide investigator who

would obtain the warrant, and traveling to the hospital. At Ryder Trauma Center,

Trooper Adkinson again smelled an odor of alcohol emanating from Aguilar’s

face, which was “flushed,” and noticed Aguilar’s “bloodshot and watery” eyes.

Soon thereafter, Trooper Adkinson directed a nurse to obtain a nonconsensual

blood sample from Aguilar. The blood sample, taken at 5:42 a.m., showed that

Aguilar’s blood alcohol level was 0.112.

      Aguilar was arrested and charged with DUI Manslaughter (Count I), two

counts of DUI causing serious bodily injury (Counts III, IV), and two counts of

DUI with person or property damage (Counts II, V). Aguilar filed several motions

to suppress, including one to suppress the blood draw test results due to a lack of

probable cause and lack of a warrant.

      On May 15, 2013, the trial court heard evidence on the suppression motions.

In addition to Trooper Adkinson’s testimony, the State introduced testimony that to



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obtain a warrant at the time, it would have taken at least four hours, due to the

information and evidence gathering, the writing of the affidavit, sending that

affidavit to the Assistant State Attorney for verifying probable cause, and then

driving to the emergency judge’s house. The State argued that because of the

natural metabolization of alcohol in the bloodstream, there were time constraints

creating an exigent circumstance to justify an exception to the warrant

requirement.   The trial court found this evidence was sufficient to establish

probable cause to order a nonconsensual blood sample from Aguilar and thus

denied the suppression motions.

      At trial, Aguilar moved for a judgment of acquittal and direct verdict, which

the trial court denied. Subsequently, the jury returned a guilty verdict as to Counts

I, III, and V. As to Counts II and IV, the jury found Aguilar guilty of the lesser

included offense of DUI. Aguilar was sentenced to fifteen years in state prison as

to Count I, six months in the Dade County Jail as to Counts II and IV, five years in

state prison as to Count III, and 364 days in the Dade County Jail as to Count V.

This appeal followed.

II.   STANDARD OF REVIEW

      In reviewing a trial court’s ruling on motions to suppress, “appellate courts

. . . accord a presumption of correctness . . . to the trial court’s determination of

historical facts,” but “independently review [de novo] mixed questions of law and



                                         5
fact that ultimately determine constitutional issues arising in the context of the

Fourth Amendment.” Connor v. State, 803 So. 2d 598, 605, 608 (Fla. 2001).



II.   ANALYSIS

      We write primarily to address Aguilar’s argument that the warrantless blood

test violated the Fourth Amendment such that his motion to suppress should have

been granted.1 For reasons stated below, we find that the trial court properly

denied Aguilar’s motion to suppress and affirm as Counts I, III, and V, but reverse

as to Counts II and IV due to violations of the prohibition on double jeopardy.

      A.     Admission of Blood Test Results

       “‘[S]earches conducted outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-delineated exceptions.’”

Arizona v. Gant, 556 U.S. 332, 338 (2009) (emphasis in original) (footnote

omitted) (quoting Katz v. United States, 389 U.S. 347, 357 (1967) (1967)). “One

well-recognized exception applies when ‘the exigencies of the situation make the

needs of law enforcement so compelling that [a] warrantless search is objectively

reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U.S. 452, 460

1 Counsel for Aguilar conceded at oral argument that Appellant was not arguing or
relying on a violation of Florida’s implied consent law. Accordingly, the
warrantless blood test was statutorily valid due to Aguilar’s implied consent.


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(2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). The Supreme

Court has twice addressed the applicability of this exigency exception to blood

testing in DUI cases.2

      In Schmerber v. California, 384 U.S. 757 (1966), a blood test was

administered to the drunk driver despite his objections.       Id. at 759.    After

concluding the Fourth Amendment applied to DUI blood tests, the Court

considered whether the police officer could make the probable cause determination

or whether it must be made by a magistrate, who, in turn, would issue a warrant for

the blood test. Id. at 767, 770. The Court, however, determined that even if a

warrant from a magistrate was required, an emergency—the delay necessary to

obtain a warrant under the circumstances threatened the destruction of evidence—

existed to excuse the warrantless search.       Id. at 770-71.     In making this

determination, the Court reasoned that because “the percentage of alcohol in the

blood begins to diminish shortly after drinking stops, as the body functions to

eliminate it from the system,” there was no time to secure a warrant due to the time

to take the accused to a hospital and investigate the accident scene.            Id.

Additionally, the Court noted “[t]he police officer who arrived at the scene shortly

after the accident smelled liquor on petitioner’s breath, and testified that

2 The Court has also addressed blood tests under the search incident to arrest
exception, Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), but that particular
exception is not applicable here.


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petitioner’s eyes were ‘bloodshot, watery, sort of a glassy appearance,’” and within

two hours, he again observed the petitioner showing “similar symptoms of

drunkenness” at the hospital. Id. at 768-69. “Given these special facts,” the Court

concluded that “the attempt to secure evidence of blood-alcohol content in this

case was . . . appropriate [due to the emergency].” Id. at 771.

      More recently, the Court again addressed warrantless DUI blood tests in

exigent circumstances in Missouri v. McNeely, 569 U.S. 141 (2013). In McNeely,

the Court, in a five-to-four majority opinion, reaffirmed that the natural dissipation

of alcohol in the bloodstream was not a per se exigency, but one factor to consider

in the totality of the circumstances test. Id. at 156, 164-65. The Court noted its

Schmerber decision relied not only on the natural dissipation of alcohol, but also

the delay to secure a warrant after investigating the scene of the accident and

transporting the injured suspect to the hospital. Id. at 150-52. The Court clarified

that in “drunk-driving investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they do so,” but

recognized “that some[3] circumstances will make obtaining a warrant impractical

such that the dissipation of alcohol from the bloodstream will support an exigency

justifying a properly conducted warrantless blood test.” Id. at 1561.
3Given the nature of DUIs, it will likely be “most” rather than “some.” The instant
case, occurring in the early hours of Sunday morning, is instructive.


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      We further find instructive Goodman v. State, 229 So. 3d 366 (Fla. 4th DCA

2017).    In Goodman, the Fourth District Court of Appeal found exigent

circumstances existed to justify a warrantless blood test where: (1) the defendant

“absented himself from the scene [of the accident] for over an hour” but returned;

(2) the defendant went on his own accord to the hospital for treatment before

investigators found the defendant’s vehicle and the victim’s body; (3) “nearly four

hours had passed since the time of the crash” when the investigator reached the

hospital; and (4) “[t]he investigator testified that it would have taken an additional

two hours to obtain a search warrant.” Id. at 381. As the Fourth District noted,

             [t]his was not a ‘routine DUI’ once the victim’s body was
             discovered. Although the Supreme Court noted that ‘the
             natural dissipation of alcohol in the bloodstream does not
             constitute an exigency in every case,’ the Court clearly
             signaled that in some cases the destruction of evidence by
             the natural dissipation of alcohol could constitute an
             exigent circumstance.

Id. (emphasis in original) (quoting McNeely, 569 U.S. at 165).

      Factually, the instant case is akin to Schmerber and not to McNeely.

However, notwithstanding the factual similarities, applying the totality of the

circumstances test makes it clear that the trial court did not err in finding that

exigent circumstances were present to justify a warrantless blood test. Aguilar’s

accident occurred at approximately 4:22 a.m. on a Sunday. The accident was

serious, resulting in the instantaneous death of one pedestrian, and caused serious



                                          9
bodily injuries to two more pedestrians. The accident occurred at the scene of a

prior accident. Aguilar himself was seriously injured, taken to a hospital for

treatment, and induced into a coma and intubated. At both the accident scene and

later at the hospital, Aguilar smelled of alcohol and exhibited symptoms consistent

with drunkenness. The blood sample was taken at 5:42 a.m., about ninety minutes

after the accident. And the testimony provided by the State was that a warrant

would have taken at least four hours to obtain from the time the process began.4

As such, we find no Fourth Amendment violation and conclude that the trial court

properly denied the motion to suppress.5
4 Although we doubt hindsight applies here, as we are gauging whether the officers
were under the reasonable belief that they were acting in an emergency, we note
that ninety minutes after the crash, Aguilar’s blood test results showed a BAC of
0.112. Based on the testimony below, a warrant would have taken four hours to
obtain. Assuming in the light most favorable to Aguilar that this meant four hours
from the accident, it would have taken another two-and-a-half hours after the
actual test result time to obtain the warrant, thus allowing Aguilar’s BAC to
continue dropping. More likely though, as the testimony suggests, the four hours
would have begun running when the homicide detective arrived at the scene at
approximately 5:30 a.m., over an hour after the accident.
5 We note that the case of State v. Liles, 191 So. 3d 484, 488–89 (Fla. 5th DCA
2016), review denied, No. SC16-1096, 2016 WL 4245500 (Fla. Aug. 11, 2016),
and review denied sub nom., Willis v. State, No. SC16-1118, 2016 WL 4247056
(Fla. Aug. 11, 2016), cert. denied, 137 S. Ct. 688 (2017), is distinguishable from
the instant case. In Liles, the Fifth District Court of Appeal declined to uphold
warrantless blood searches based on exigent circumstances. Id. However, the
appellate court did so not on any legal ground relevant here, but because the State
had failed to present sufficient evidence to the trial court that exigent
circumstances existed even though it had the burden of doing so. See id. In the
instant case, by contrast, the State met its evidentiary burden regarding the
existence of exigent circumstances.


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       B.    Double Jeopardy Issue

       We turn now to address Aguilar’s argument that double jeopardy precludes

his conviction under Counts II and IV.           Aguilar was convicted of DUI

Manslaughter (Count I), one count of DUI causing serious bodily injury (Count

III), one count of DUI causing damage to property or person (Count V), and two

counts of DUI (Counts II, IV). Aguilar contends that double jeopardy precludes

his convictions under Counts II and IV. The State concedes that Aguilar is correct.

See Art. I, § 9, Fla. Const. (double jeopardy clause); § 775.021(4)(b)(3), Fla. Stat.

(2007) (codifying that criminals are not to be convicted of “[o]ffenses which are

lesser offenses the statutory elements of which are subsumed by the greater

offense”); Labovick v. State, 958 So. 2d 1065, 1068 (Fla. 4th DCA 2007) (holding

that DUI is a lesser included offense of DUI manslaughter). Accordingly, based on

the State’s proper concession, we direct the trial court to vacate Aguilar’s

convictions for DUI (Counts II and IV).



III.   CONCLUSION

       Based on the totality of the circumstances, we affirm Aguilar’s conviction

and sentence for DUI Manslaughter, DUI causing seriously bodily injury, and DUI

causing damage to property or person. We reverse and remand to the trial court




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however, to vacate Aguilar’s convictions for DUI. We affirm as to all other issues

without discussion.

      Affirmed in part, reversed in part.




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