         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-2020
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MICHAEL D. MILLER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Lafayette County.
Darren K. Jackson, Judge.

                          May 25, 2018


PER CURIAM.

     Appellant, Michael Miller, challenges his convictions for
driving under the influence and causing the death of another
human being in violation of section 316.193, Florida Statutes, for
driving under the influence and causing serious bodily injury,
contrary to section 316.193(3), Florida Statutes, and for driving
under the influence and causing property damage in violation of
section 316.193(3), Florida Statutes.

     On December 7, 2013, Miller and his passenger had collided
with a motorcycle on State Road 27 after a night of drinking. The
driver of the motorcycle was killed and the brother on the
motorcycle suffered multiple injuries. Florida Highway Patrol
arrived at the scene and Miller agreed to a voluntary blood
withdrawal. When Sergeant Simmons asked for Miller’s signature
for the consent form, he refused to sign and withdrew his consent
to the blood withdrawal. Simmons then explained that if Miller
refused consent, a warrant would be obtained to get the blood from
him. Miller then agreed to the blood draw and signed the consent
form.

     On appeal, Miller makes two arguments. First, he argues that
it was error for the trial court to deny his motion to suppress the
blood alcohol test results because his blood was taken without his
consent and without a warrant. Miller says his consent was not
freely and voluntarily given, but rather it was an acquiescence to
Simmons’ misrepresented authority that he had probable cause to
obtain a warrant. Whether consent was freely and voluntarily
given is determined by the totality of the circumstances. Montes-
Valeton v. State, 216 So. 3d 475, 480 (Fla. 2017) (listing factors
such as time and place of encounter, number of officers present,
officer’s words or actions, age and maturity of defendant,
defendant’s prior offenses, defendant’s execution of a written
consent form, whether defendant was informed of his or her right
to refuse consent, and length of time of interrogation). The facts
and circumstances in this case demonstrate that Miller freely and
voluntarily consented to the blood withdrawal. Specifically,
Simmons explained that refusal to consent would require him to
get a warrant (for which probable cause existed) to obtain the blood
sample, which he explained would require them to drive to a judge
during the night to get the warrant signed. Simmons’s explanation
did not amount to coercion or misrepresentation of authority
because he had probable cause and accurately described to Miller
what would occur if a warrant were sought. Miller’s subsequent
consent, both oral and written, was therefore freely and
voluntarily given. Consequently, the trial court did not err in
denying Miller’s motion to suppress.

     Second, Miller argues that the trial court erred by precluding
him from presenting evidence that the victim was driving a
motorcycle without an endorsement when he and his brother were
hit by Miller from behind, because this evidence was relevant to
Miller’s defense that the victim’s conduct was the sole cause of the
accident. For the decedent’s conduct to be a defense to vehicular
manslaughter, the conduct must be viewed as the sole proximate

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cause of the accident. Everett v. State, 435 So. 2d 955, 957-58 (Fla.
1st DCA 1983); see also Union v. State, 642 So. 2d 91, 94 (Fla. 1st
DCA 1994) (applying to vehicular homicide). Here, evidence was
presented that Miller had been drinking on the night of the
incident, had a blood alcohol content higher than 0.08, and was
excessively speeding prior to the crash. Because of the obvious
risks associated with driving under these conditions, no reasonable
jury would conclude that the decedent’s lack of a motorcycle
endorsement was the sole proximate cause of the accident.
Therefore, the trial court did not err in precluding Miller from
presenting this type of evidence.

     Because the record demonstrates that Miller consented to the
blood draws, and because there was no reasonable basis to
conclude that the decedent’s conduct was the sole proximate cause
of the accident, we affirm.

    AFFIRMED.

B.L. THOMAS, C.J., and MAKAR 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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Andy Thomas, Public Defender, Glenna Joyce Reeves, Assistant
Public Defender, Tallahassee, for Appellant.

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




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