         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1252
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CYNTHIA PROCTOR BEDELL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

                         May 31, 2018



BILBREY, J.

     Appellant challenges the denials of her two dispositive
motions to suppress evidence of her blood alcohol level.
Following the denials of her motions Appellant pleaded no
contest to the charge of driving under the influence of alcohol
third conviction within ten years, reserving her right to appeal
the denials. See § 316.193(2)(b)1, Fla. Stat. (2016). Because we
find that the trial court applied the correct law and that the
court’s findings of fact were supported by competent substantial
evidence, the denials of the motions to suppress are affirmed.
    We review orders denying motions to suppress under a
mixed standard. As we stated in State v. Gandy, 766 So. 2d 1234,
1235 (Fla. 1st DCA 2000):

     A trial court’s ruling on a motion to suppress comes to us
     clothed with a presumption of correctness, and we must
     interpret the evidence and reasonable inferences and
     deductions in a manner most favorable to sustaining that
     ruling. Johnson v. State, 608 So. 2d 4, 9 (Fla.1992), cert.
     denied, 508 U. S. 919, 113 S. Ct. 2366, 124 L. Ed. 2d 273
     (1993).

Because a motion to suppress presents mixed questions of law
and fact, “an appellate court must determine whether competent,
substantial evidence supports the lower court’s factual findings,
but the trial court’s application of the law to the facts is reviewed
de novo.” State v. Murray, 51 So. 3d 593, 594 (Fla. 5th DCA
2011).

      The facts adduced at the suppression hearings were
consistent and generally undisputed. According to the Okaloosa
County Sheriff’s deputy who responded to the single-vehicle
crash, he found Appellant in the driver’s seat of her vehicle with
a cup of vodka in the cup holder and a partially filled bottle of
vodka in the front passenger seat.         The deputy described
Appellant’s demeanor and the condition of her vehicle, which had
left the roadway and collided with a sign post. He stated that his
observations led him to immediately suspect that Appellant had
been driving under the influence of alcohol. Video from the
deputy’s body camera recorded at the crash site was admitted
into evidence and was consistent with his description of his
encounter with Appellant.

     Appellant was not arrested at the scene of the accident, but
the deputy encouraged her to accept transportation to a medical
facility by ambulance. The deputy testified that Appellant
agreed to be transported but her condition required physical
assistance to enter the ambulance. The deputy explained that he
did not administer a breath test at the scene because he had no
equipment to do so with him. He did not collect a urine sample at


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the scene because it was not the Sheriff’s office practice to do so
in the field.

     The deputy proceeded to the medical facility and located
Appellant in a treatment room. He observed that Appellant was
conscious but lying in a bed with an IV inserted in her arm.
According to his testimony, the deputy read Appellant her
Miranda rights at the medical facility and thereafter, he
presented her with the voluntary consent form used by the
Okaloosa Sheriff’s office for purposes of obtaining a blood sample
for alcohol testing. The deputy read the consent form to
Appellant and she signed it. The deputy did not offer Appellant a
breath test at the hospital because he had no equipment to do so.
He did not request that she provide a urine sample either,
because Appellant’s condition convinced him that she could not
safely stand and walk to the bathroom to provide a sample
without falling. 1

     Both the deputy and the medical facility’s “patient care
technician” testified about their actions in collecting and
handling the blood samples as Appellant lay in the hospital bed.
Each testified that they consulted the instructions on the kit for
each step and marked and sealed the vials according to the
instructions. After the blood vials were sealed, both witnesses
testified that the sealed vials were tipped during the process as
the technician checked her watch, placed horizontally beside
Appellant on her bed, and moved from the bed to the collection
box. The testimony regarding the chain of custody of the vials as
they moved from the hospital to the Sheriff’s Office to the FDLE
lab and back was undisputed.

     Four months after the date of the accident, the blood test
results showing a .194 blood alcohol level led to Appellant’s arrest
and criminal charges. The parties agreed that the motions to
suppress the results of Appellant’s blood test were dispositive in
the case.

    1There was no testimony or argument below as to whether it
was impractical to use a bedpan or catheter to obtain a urine
sample from Appellant. Furthermore, no such argument is made
on appeal.

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     Appellant’s first motion sought to exclude the test results
because the samples were not “inverted several times to mix the
blood with the preservative and coagulant” as required by rule
11D-8.012(3), Florida Administrative Code. After the evidentiary
hearing, the trial court denied this motion based on its finding
that the collection and handling of the blood samples
“substantially complied” with the requirements of rule 11D-
8.012(1)-(6) and that there was no evidence of a substantial
adverse effect from failing to strictly follow subsection (3) of the
rule.

     On appeal, Appellant argues that the trial court’s application
of a substantial compliance test was legal error and that strict
compliance with rule 11D-8.012(3) was required. However, we
find that the trial court applied the correct standard and law to
the facts in evidence.

     Unquestionably, blood alcohol tests must be conducted in
conformity with the rules governing collection and handling of
the samples. Gargone v. State, 503 So. 2d 421 (Fla. 3d DCA
1987). Where there is “virtually no adherence” to the applicable
rules — for instance, where only the labeling requirement is met
but none of the other procedures are followed — suppression is
required. Id. at 423.        But the standard is “substantial
compliance” with the rules, so as to produce reliable scientific
evidence. Id.; State v. Burke, 599 So. 2d 1339, 1342 (Fla. 1st DCA
1992) (“The admissibility of the result of such blood alcohol tests
shall also be judged by a determination of whether substantial
compliance with the rules and regulations has taken place.”).

     “[M]inor deviations from the rules will not prohibit the test
results from being presented, as long as ‘there is evidence from
which the fact finder can conclude that the [test] itself remained
accurate.’” State v. Kleiber, 175 So. 3d 319, 321 (Fla. 5th DCA
2015), quoting State v. Donaldson, 579 So. 2d 728, 729 (Fla.
1991). In Kleiber, the defendant’s arm was swabbed with dry
gauze rather than an alcohol-free antiseptic as prescribed by rule
11D-8.012(1). Kleiber, 175 So. 3d at 320. The appellate court
reversed the trial court’s suppression of the test results under a
strict compliance standard and held that substantial compliance
was the correct standard. Id. at 321-322; see § 316.1932(1)(f),

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Fla. Stat. (2016) (blood and breath tests “shall be administered at
the request of a law enforcement officer substantially in
accordance with the rules” governing approved method).

     Accordingly, in denying Appellant’s first motion to suppress,
the trial court’s finding of substantial compliance with the
procedures set out in rule 11D-8.012 applied the proper standard
to the evidence presented. The court’s finding that Appellant
“presented no evidence of a substantial adverse effect” from the
handling of the vials, which were incidentally tipped and moved
immediately after the blood was drawn, but not “inverted several
times” as rule 11D-8.012(3) requires, was not an improper shift of
the burden of proof to Appellant. Once the State showed
substantial compliance with the rule, Appellant was free to
present any evidence that the deviation affected the accuracy of
the test. The court’s statement merely noted that Appellant did
not present any such evidence.

     In her second motion to suppress, Appellant asserted that
the blood samples were illegally obtained because she was not
offered a breath test or a urine test prior to the law enforcement
officer’s request that she consent to a blood draw. She relied on
section 316.1932(1)(c) for her position that without a prior offer of
these less-intrusive testing methods, her consent could not be
implied and her actual consent was involuntary. The trial court
denied suppression on this ground, finding that “a urine test was
impractical” based on the deputy’s testimony that Appellant’s
condition caused him to believe that Appellant was at risk of
falling on the way to the bathroom.

     On appeal of this order, Appellant argues that the trial
court’s denial of her motion was unsupported by any evidence
that a urine test was impractical.         Section 316.1932(1)(c)
establishes the conditions under which a driver is “deemed to
have given his or her consent to submit to an approved blood test
for the purpose of determining the alcoholic content of the blood.”
The statutory conditions are:

     (1) where there is reasonable cause to believe the
     person was driving a vehicle while under the influence
     of alcohol, chemicals, or controlled substances; (2)

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    where the person appears for treatment at a medical
    facility; and (3) where the administration of a breath or
    urine test is impractical or impossible.

State v. Serrago, 875 So. 2d 815, 819 (Fla. 2d DCA 2004).

     Conditions (1) and (2) above were not contested at the motion
hearing and are not challenged on appeal. For condition (3), the
trial court’s determination whether the administration of a
breath or urine test is impractical or impossible is a finding of
fact. See State v. Polak, 598 So. 2d 150 (Fla. 1st DCA 1992). A
trial court’s “determinations of factual questions must be
accepted by the appellate court if the record supports that
finding.” Id. at 152.

     The record supports the trial court’s finding that it was
impractical to administer a urine test to Appellant under the
circumstances. The court specifically relied on the deputy’s
testimony and considered his medical training and background.
Our review of the record testimony at the motion hearing
confirms that the deputy proceeded with the blood test because
he believed Appellant was not in a condition to safely provide a
urine sample at the time. The fact that medical personnel could
have been called in to assist Appellant to the bathroom, as
suggested by defense counsel on cross-examination, is inapposite.
Even if a urine test was not “impossible” due to the availability of
hospital personnel to assist, the trial court’s finding that a urine
test was “impractical” is an alternative statutory basis upon
which Appellant may be deemed to have consented to submit to
an approved blood test under section 316.1932(1)(c).

     Appellant fails to establish that the trial court applied the
incorrect legal standard to the compliance of the blood draw
procedure with rule 11D-8.012, Florida Administrative Code.
Appellant also fails to show any deficiency in the evidence
supporting the trial court’s finding of fact that a urine test was
“impractical” for purposes of implied consent under section
316.1932(1)(c), Florida Statutes. The orders on appeal denying
the motions to suppress are therefore AFFIRMED.

RAY and WINOKUR, JJ., concur.

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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Dustin Dewrell, Shalimar, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon S. Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




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