       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Petitioner,

                                    v.

                           TYLER KERSTING,
                              Respondent.

                              No. 4D18-291

                             [May 16, 2018]

   Petition for writ of certiorari to the Seventeenth Judicial Circuit,
Broward County; Timothy L. Bailey, Judge; L.T. Case No. 16-002296
CF10A.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for petitioner.

   Michael D. Leader of Leader & Leader, P.A., Fort Lauderdale, for
respondent.

PER CURIAM.

    The State of Florida seeks certiorari review of a pretrial order that
compels the non-testifying disabled victim in a pending DUI criminal case
to undergo a neurological examination to ascertain his conscious
awareness of the legal proceeding. Upon receipt of the results, the trial
court will rule on the defendant’s pending motion in limine, which seeks
to exclude the victim from the courtroom during his trial. We grant the
petition and quash the order compelling the exam. Smart v. Bock, 220 So.
3d 1196, 1197 (Fla. 4th DCA 2017) (recognizing that certiorari review lies
to review order compelling a mental health exam).

   Article I, section 16(b) of the Florida Constitution provides that crime
victims have the right to be present at all crucial stages of criminal
proceedings “to the extent that these rights do not interfere with the
constitutional rights of the accused.” The Florida Constitution’s language
and the commentary currently state that the victim’s rights are
subordinate to the rights of the accused to the extent they would interfere
with the accused’s rights.
    The trial court ordered the examination in its effort to balance the
disabled victim’s constitutional right to be present at trial with the
defendant’s constitutional right to a fair trial.         To that end, the
neurologist’s role is to determine if the catastrophic injury that the victim
suffered prevents him from understanding the judicial proceedings. The
trial court indicated that the victim will be allowed to be present in the
courtroom if he is “aware.”

   We grant the petition for two reasons. First, the exam infringes upon
the victim’s right to remain inviolate from an invasive examination not
authorized or required by law. See Fla. Const., art. I, § 23. (“Every natural
person has the right to be let alone and free from governmental intrusion
into the person’s private life except as otherwise provided therein.”); State
v. Smith, 260 So. 2d 489, 491 (Fla. 1972) (holding that trial court could
not compel a witness to be examined for visual acuity). As the Florida
Supreme Court stated in Smith, “[n]o right is held more sacred, or is more
carefully guarded, by the common law, than the right of an individual to
the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of
law.” Smith, 260 So. 2d at 491 (citation omitted).

    Second, the record does not reflect that this is a case where the exam
targets evidentiary or impeachment issues. See generally State v. Rhone,
566 So. 2d 1367 (Fla. 4th DCA 1990); State v. Kuntsman, 643 So. 2d 1172
(Fla. 3d DCA 1994). We note that, even in such cases, Florida appellate
courts have closely guarded the victim’s privacy interests. See State v.
Farr, 558 So. 2d 437, 438 (Fla. 4th DCA 1990) (quashing order requiring
second examination of minor sex crime victim in the absence of extreme
or compelling circumstances); Dinkins v. State, 244 So. 2d 148, 150 (Fla.
4th DCA 1971) (upholding denial of motion to compel examination of
sexual battery victim because exam was not essential to prevent
miscarriage of justice); State v. Diamond, 553 So. 2d 1185, 1194 (Fla. 1st
DCA 1988) (quashing order for gynecological exam of child witness and
citing Smith as a “firm warning” against the “spontaneous generation” of a
criminal defense right to subject victims to physical examination).

   We decline to consider the cases cited by the parties addressing civil
suits wherein courts have considered excluding the plaintiff from trial.
Those cases do not address the limited issue before this court: the
propriety of the victim’s neurological exam. Therefore, in granting this
petition, we make no finding regarding the pending motion to exclude the
victim from the courtroom.



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    To the extent the trial court seeks to balance the victim’s constitutional
right to be present at trial with the defendant’s constitutional right to a
fair trial, it will have to do so without subjecting the victim to the
neurological examination.

   Petition granted. Order quashed.

GERBER, C.J., LEVINE and CONNER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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