       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            JOHN GOODMAN,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-4479

                              [July 26, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 502010CF005829
AMB.

   Margaret Good-Earnest and Cherry Grant of Good-Earnest Law, P.A.,
Lake Worth, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    In his appeal of his conviction and sentence for DUI manslaughter with
failure to render aid, and vehicular homicide with failure to render aid,
appellant raises thirteen issues. We affirm as to all and write to address
three issues. First, appellant contends that the State prematurely released
his vehicle after his first trial, thus violating his due process rights and
requiring dismissal under California v. Trombetta, 467 U.S. 479 (1984).
We disagree, concluding that because of the prior testing on the vehicle
and the State’s agreement not to introduce certain testing by its expert,
the vehicle was not “constitutionally material” and any potential prejudice
was eliminated. Second, he contends that the jury instructions on the
failure to render aid enhancements violated due process by failing to
require that appellant knew that the accident resulted in injury or death.
The statutes, however, merely require that the person “knew or should
have known of the crash,” not the injury. The instructions read to the jury
went beyond this and required that appellant “knew” of the crash. We
therefore reject appellant’s challenge to the jury instructions. Third,
appellant claims that his blood was drawn without a warrant, violating the
Fourth Amendment Search and Seizure clause. However, the exigent
circumstances exception applies, and the failure to obtain a warrant was
not error. As to the sentence for the vehicular homicide conviction, which
the court held in abeyance, we reverse on double jeopardy grounds.

   Following a late-night two-vehicle accident, in which the other driver
died after his vehicle was submerged in a canal, appellant was charged
with DUI manslaughter with failure to render aid (Count 1) and vehicular
homicide with failure to render aid (Count 2). Appellant was convicted and
sentenced following his first trial. After juror misconduct came to light,
see DeMartin v. State, 188 So. 3d 87 (Fla. 4th DCA 2016), appellant’s first
conviction was vacated and he was granted a new trial.

    Prior to his second trial, appellant moved to dismiss the charges against
him after he discovered that the State had prematurely released the two
vehicles involved in the crash. One of the vehicles, a Bentley driven by
appellant, was eventually found in Texas, having been repaired and
refurbished. Appellant argued that the Bentley was materially exculpatory
based on his allegation that an issue with the throttle led to a brake
malfunction. He admitted that the malfunction had been extensively
discussed during his first trial, including codes from the Bentley’s
electronic control module (“ECM”) indicating a throttle malfunction.
However, appellant argued that his automotive engineer expert was not
allowed to conduct the same physical manipulative inspections of the
Bentley’s throttle as the State’s expert. Following a hearing, the court
denied the motion to dismiss, determining that “the Bentley did not rise to
the level of materially exculpatory evidence and instead was only
potentially useful evidence[.]” Therefore dismissal was “too harsh a
sanction in the absence of bad faith on the part of the State.” As the State
agreed not to call its expert, “there remains no prejudice to Defendant in
his ability to present the expert testimony and findings he has collected.”

   Appellant also sought to suppress the results of his blood alcohol test,
arguing that the test constituted a warrantless search in violation of his
Fourth Amendment rights. The court held a hearing, during which the
testimony indicated that the crash occurred around 1:00 a.m., but
appellant left the scene and called 911 about an hour later. He returned
to the scene shortly after 2:00 a.m. At 2:26 a.m., he was transported to
the hospital. At 2:31 a.m., the victim’s body was discovered. The homicide
investigator was called and arrived at the crash site at 3:18 a.m. At 3:33
a.m., the investigator met appellant at the hospital, where he observed
signs of intoxication. After appellant refused a voluntary blood draw, a
forced blood draw was conducted at 4:00 a.m. The investigator testified
that it would have taken two-and-a-half hours that night to obtain a

                                     2
warrant. On these facts, the court denied the motion to suppress the blood
test results, finding that the exigent circumstances exception applied.

   At the second trial, the evidence showed that appellant ran a stop sign
without braking and “t-boned” the victim. Appellant was going sixty-three
miles per hour in a thirty-five miles per hour zone. The force of the impact
pushed the victim’s Hyundai through the intersection and into a nearby
canal, where it came to rest upside down. Appellant did not remain on the
scene or assist the victim, who ultimately drowned. The victim did not
sustain fatal injuries in the collision itself. Earlier in the evening,
appellant had consumed alcohol at several venues, the amount of which
was a contested issue at trial.

   After the accident, appellant quickly left the scene on foot. He
resurfaced a half hour later at a woman’s trailer, seeking a phone. He
used the woman’s phone to call his girlfriend. The woman testified that
appellant acted slow and “out of it.” He was mumbling and repeating
himself, and told her that he was in a really bad accident and hoped no
one was hurt. He admitted he had a few drinks. After appellant spoke
with his girlfriend, he asked the woman what to do. When she suggested
he call 911, appellant asked whether he should call his lawyer first and
turn himself in. Appellant never mentioned stopping elsewhere between
the crash and arriving at her trailer.

   Appellant called 911 at 1:56 a.m. He told the 911 operator that he
stopped at a stop sign, looked, did not see anything, pulled out, and hit
something. He did not say his car malfunctioned. He said he walked down
the road to a barn, hopped over the gate, and came to the woman’s house
to get a phone.

   A deputy picked up appellant to bring him back to the crash site. When
the deputy asked appellant if he was injured, he only mentioned pain in
his wrist. He claimed that he stopped at the stop sign, went through the
stop sign, hit something, was unaware of what he hit, and left to make a
phone call. Appellant was emanating the odor of alcohol and his speech
was slurred. Upon returning to the crash site, the deputy escorted
appellant to paramedics.

   The paramedics who treated appellant at the scene also noted that his
speech was a little slurred and he smelled of alcohol. He did not, however,
appear to have consumed a large amount of alcohol within the hour prior.
Appellant was not dizzy, his head did not hurt, and he denied losing
consciousness. Once at the hospital, appellant was alert and did not


                                     3
complain of head pain, dizziness, or nausea. The doctor’s notes indicated
that he denied losing consciousness.

   Appellant refused a blood test, but had blood drawn at 3:59 a.m., which
revealed that his blood alcohol level was 0.177 and 0.178. A toxicologist
calculated that appellant’s blood alcohol level at the time of the crash was
between 0.207 and 0.237, the equivalent of twelve to thirteen drinks.

    Appellant’s forensic engineer testified that the Bentley did not stop at
the stop sign. He opined that the vehicle was going between forty-nine and
fifty-eight miles per hour at the time of the crash.

    Appellant’s automotive engineer testified that he had inspected the
Bentley prior to the first trial, before it was released. The ECM report
registered a fault code at some point prior to the crash. The code indicated
that the vehicle’s two throttle valves were unsynchronized due to a
mechanical malfunction. One of the two throttles in the vehicle was
lagging behind the other, but the expert was unable to determine whether
the lag was in engaging or releasing the accelerator pedal, and he was
unable to determine how long the lag was. Regardless, the throttle issue
did not affect the braking system, and, due to the vehicle’s multiple
override systems, upon applying the brakes, “[i]n a worst case scenario,
the driver might feel a delay in response[.]” The expert speculated that
there could have been some computer malfunction as well, but he had no
data reflecting such. He had been unable to conduct certain tests because
of the vehicle’s release and refurbishment. He admitted he had previously
testified during a deposition that further testing would not tell him
anything beyond what he already knew based on the vehicle’s diagnostic
stored data.

   The State’s electrical engineer also inspected the Bentley after it was
found in Texas and opined that the braking system functioned until
damaged in the crash. The State’s vehicle expert from the first trial did
not testify at the second trial.

   Appellant testified in his defense and claimed that he was not
intoxicated at the time of the accident, but rather that the brakes on his
Bentley malfunctioned when he attempted to stop at the stop sign. He
said that he lost consciousness in the crash. After he awoke, he looked
around the crash site, which was very dark, but did not see any vehicles.
He did not look in the canal. His phone wasn’t working, so he decided to
go look for a phone to call 911.



                                     4
   Significantly, appellant testified that after he left the crash site to find
a phone, he came upon a “man cave” belonging to a member of the polo
team he owned. The “man cave” did not have a telephone, but was stocked
with liquor. Appellant testified that he drank an unknown quantity of
alcohol from a bottle, then headed toward the woman’s trailer. Appellant
testified that he told one of the deputies that he went into the “man cave”
and consumed alcohol after the crash.

   Several motions and hearings were held prior to and during trial
regarding the jury instructions for the failure to render aid enhancement
on both charges. The standard jury instruction for the enhancement on
the DUI manslaughter charge provides:

      If you find the defendant guilty of Driving under the Influence
      Manslaughter, you must further determine whether the State
      proved beyond a reasonable doubt that:

      4. (Defendant), at the time of the crash,

      a. knew or should have known that the crash occurred and

      b. failed to give information as required by law and

      c. failed to render aid as required by law.

Fla. Std. Jury Instr. (Crim.) 7.8 (emphasis added). The corresponding
instruction for the vehicular homicide charge provides:

      If you find the defendant guilty of [vehicular] [vessel] homicide,
      you must then determine whether the State has further
      proved beyond a reasonable doubt that:

      1. At the time of the accident, (defendant) knew, or should
      have known, that the accident occurred; and

      2. (Defendant) failed to give information and render aid as
      required by law. (Read applicable portion of § 316.062, Fla.
      Stat., as charged in information or indictment.)

      However, the State is not required to prove (defendant)
      knew that the accident resulted in injury or death.

Fla. Std. Jury Instr. (Crim.) 7.9 (emphasis added).


                                      5
   Appellant proposed adding a requirement that he “knew that the
accident resulted in death or injury[,]” rather than mere knowledge of the
accident. The State agreed to include an element regarding knowledge of
injury or death, but argued for the lesser “knew or should have known”
knowledge requirement. The court agreed with the State. With the State’s
agreement, the court deleted the last sentence of Instruction 7.9.

    During trial, the parties and the court again reviewed the jury
instructions, and appellant renewed his request to include actual
knowledge of injury or death as an element of Instruction 7.8. The court
declined to add a “knew of death” requirement, ruling that the standard
should be “knew or should have known.” As to knowledge of the accident,
the court denied the State’s requested inclusion of “should have known,”
instead requiring actual knowledge. The court granted appellant’s request
to include a definition of “willfully.”

   As to Instruction 7.9, appellant did not submit another proposed
version. The State objected to deletion of the “should have known” of
accident language. There was no specific discussion of the inclusion of a
“knew of death” requirement in Instruction 7.9. The court granted
appellant’s request to include actual knowledge of accident. Notably, the
court ruled that it would include the last sentence in Instruction 7.9
(“However, the State is not required to prove (defendant) knew that the
accident resulted in injury or death”), contrary to its previous ruling.

   After another conference, a final version of the instructions was
submitted. This version of Instructions 7.8 and 7.9 included a willfulness
requirement and required actual knowledge of the accident, but did not
require any knowledge of injury or death. Instruction 7.9 included the
sentence specifying that actual knowledge of injury or death was not
required. Appellant stated that he had no new or additional objections to
this version of the instructions.

   Instruction 7.8, as read to the jury, provided as follows:

      If you find the defendant guilty of driving under the influence
      manslaughter, you must further determine whether the State
      proved beyond a reasonable doubt that John Goodman at the
      time of the crash A, knew that the crash had occurred. And
      B, willfully failed to give information as required by law. And
      C, willfully failed to render aid as required by law. Willfully
      means intentionally, knowingly, and purposely.           Florida
      requires that a driver of any vehicle involved in a crash
      resulting in injury or death of any person or damage to any

                                     6
      vehicle or other property which is driven or attended by any
      person must supply his name, address, and the registration
      number of the vehicle he is driving, to any person injured in
      the crash or to the other driver or occupant or other person
      attending any vehicle or other property damaged in the crash
      ....

(Emphasis added). In Instruction 7.9, the court instructed as follows:

      If you find the defendant guilty of vehicular homicide you
      must then determine whether the State has further proved
      beyond a reasonable doubt that 1, at the time of the accident
      John Goodman knew that an accident occurred. And two,
      John Goodman willfully failed to give information and render
      aid as required by law.      Willfully means intentionally,
      knowingly, and purposely.      However the State is not
      required to prove that John Goodman knew that the
      accident resulted in injury or death.

(Emphasis added). Instruction 7.9 followed with the same explanation of
the duty to render aid as was given in Instruction 7.8.

   The jury found appellant guilty as charged. Appellant was adjudicated
guilty and sentenced to sixteen years in prison on Count 1 (DUI
manslaughter with failure to render aid). The court took no action on the
jury verdict on Count 2 (vehicular homicide with failure to render aid).
Although appellant objected and argued that Count 2 should be
dismissed, the court agreed with the State’s request to hold Count 2 in
abeyance, so that if appellant prevailed on Count 1 on appeal, the court
could still adjudicate and sentence him on Count 2. From this conviction
and sentence, appellant has brought this appeal.

       Release of the Bentley Was Not a Due Process Violation

    In his first issue on appeal, appellant contends that his due process
rights were violated when the State prematurely released the Bentley prior
to the second trial, despite knowing that it was significant and material to
his defense. The State disagrees that the Bentley was constitutionally
material. We agree with the State and hold that the court did not err in
denying the motion to dismiss due to the loss of the Bentley. Whether a
defendant’s due process rights have been violated by the State’s
destruction of or failure to preserve evidence is a legal question and is
therefore reviewed de novo. Patterson v. State, 199 So. 3d 253, 256 n.2
(Fla. 2016).

                                     7
   When dealing with potentially exculpatory or useful evidence that has
been permanently lost, “courts face the treacherous task of divining the
import of materials whose contents are unknown and, very often,
disputed.” California v. Trombetta, 467 U.S. 479, 486-87 (1984).

      Whatever duty the Constitution imposes on the States to
      preserve evidence, that duty must be limited to evidence that
      might be expected to play a significant role in the suspect’s
      defense. To meet this standard of constitutional materiality,
      evidence must both possess an exculpatory value that was
      apparent before the evidence was destroyed, and be of such a
      nature that the defendant would be unable to obtain
      comparable evidence by other reasonably available means.

Id. at 488-89 (footnote omitted) (citation omitted).

    “Lost or unpreserved evidence is ‘material’ in this sense ‘if the omitted
evidence creates a reasonable doubt that did not otherwise exist.’” State
v. Davis, 14 So. 3d 1130, 1132 (Fla. 4th DCA 2009) (quoting State v. Sobel,
363 So. 2d 324, 327 (Fla. 1978)). “Where lost or unpreserved evidence is
‘material exculpatory evidence,’ the loss of such evidence . . . the good or
bad faith of the State is irrelevant.” Id. However, in cases where the
destroyed evidence is merely potentially useful, as opposed to
constitutionally material, failure to preserve the evidence does not
constitute a due process violation unless there is a showing of bad faith
on the part of the state. Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
In Youngblood, the court further explained the difference between the due
process implications of the destruction of materially exculpatory evidence
and that which is only potentially useful:

      The Due Process Clause of the Fourteenth Amendment, as
      interpreted in Brady, makes the good or bad faith of the State
      irrelevant when the State fails to disclose to the defendant
      material exculpatory evidence. But we think the Due Process
      Clause requires a different result when we deal with the
      failure of the State to preserve evidentiary material of
      which no more can be said than that it could have been
      subjected to tests, the results of which might have
      exonerated the defendant. Part of the reason for the
      difference in treatment is found in the observation made by
      the Court in Trombetta, supra, 467 U.S., at 486, 104 S.Ct., at
      2532, that “[w]henever potentially exculpatory evidence is
      permanently lost, courts face the treacherous task of divining
      the import of materials whose contents are unknown and, very

                                      8
      often, disputed.” Part of it stems from our unwillingness to
      read the “fundamental fairness” requirement of the Due
      Process Clause, see Lisenba v. California, 314 U.S. 219, 236,
      62 S.Ct. 280, 289, 86 L.Ed. 166 (1941), as imposing on the
      police an undifferentiated and absolute duty to retain and to
      preserve all material that might be of conceivable evidentiary
      significance in a particular prosecution. We think that
      requiring a defendant to show bad faith on the part of the
      police both limits the extent of the police’s obligation to
      preserve evidence to reasonable bounds and confines it to that
      class of cases where the interests of justice most clearly
      require it, i.e., those cases in which the police themselves by
      their conduct indicate that the evidence could form a basis for
      exonerating the defendant. We therefore hold that unless a
      criminal defendant can show bad faith on the part of the
      police, failure to preserve potentially useful evidence does
      not constitute a denial of due process of law.

Id. at 57-8 (emphasis added).

    The trial court found, and we agree, that the State did not act in bad
faith in releasing the Bentley. Therefore, we must determine whether the
Bentley constituted materially exculpatory or only potentially useful
evidence. Trombetta is instructive. It requires that “[t]o meet th[e]
standard of constitutional materiality, evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” Trombetta,
467 U.S. at 489. In Trombetta, the Court considered drunk driving breath
test samples (as opposed to the test results themselves) and found that
neither condition of materiality was met. Id. As to exculpatory value, the
Court considered the testing machine’s well-established accuracy, which
meant that “preserved breath samples would simply confirm the
Intoxilyzer’s determination that the defendant had a high level of blood-
alcohol concentration at the time of the test. . . . [B]reath samples were
much more likely to provide inculpatory than exculpatory evidence.” Id.
As to comparable evidence, the Court held that the respondents were not
without alternative means of demonstrating their innocence. Id. at 490.
The Court noted that they could address Intoxilyzer malfunction using the
machine’s weekly calibration results and by inspecting the machine. Id.
Respondents could address the possible effect of external factors such as
radio waves and operator error through cross-examination. Id. The Court
therefore found that due process does not require law enforcement to


                                    9
preserve breath samples, and therefore the Intoxilyzer results should not
have been suppressed. Id. at 491.

   In this case, the trial court held a full hearing on the issue of the
exculpatory nature of the Bentley and concluded that it was merely
potentially exculpatory. In doing so, it analyzed the evidence and the
expert’s opinions with regard to Trombetta and Youngblood:

      [Appellant’s expert], by his own former testimony, has already
      formed an opinion of the malfunction and that his opinion on
      the state of the Bentley as the time of the crash is complete.
      The “mere possibility of helping the defense” by conducting
      even more testing on the Bentley which was already subjected
      to extensive testing by three different experts does not rise to
      the level of constitutional materiality . . . .

      Therefore, any additional evidence which the vehicle[] may
      have revealed only rises to the level of “potentially useful”
      evidence . . . .

As to the appropriate remedy, the court held:

      This Court’s finding that the Bentley did not rise to the level
      of materially exculpatory evidence and instead was only
      potentially useful evidence renders dismissal too harsh a
      sanction in the absence of bad faith on the part of the State.
      The Court finds that since the State has conceded it will not
      call [the expert retained by Bentley] as an expert in the retrial,
      there remains no prejudice to Defendant in his ability to
      present the expert testimony and findings he has
      collected. . . . Furthermore, the Court notes that Defendant is
      not precluded from sharing with the jury the fact that the
      Bentley . . . [is] no longer available for inspection since [it was]
      prematurely released by the State.

Based on this, the court denied appellant’s motion to dismiss.

   Subsequently, during his second trial, appellant claimed that his
brakes malfunctioned. His expert testified that there was a throttle
malfunction that could have momentarily affected appellant’s ability to
brake and “may have contributed to the crash.” The expert admitted that
prior to the release of the Bentley, he had stated that further testing would
not tell him anything beyond what he already knew based upon the car’s
diagnostic stored data, the ECMs.

                                      10
     On appeal, appellant essentially argues that had his expert been able
to further examine the Bentley, he would have been able to complete
additional testing that might have lent additional support to the expert’s
testimony that the brakes malfunctioned before the accident. However,
the mere possibility that the testimony would have bolstered the expert’s
opinion does not rise to the level of “constitutional materiality.” Trombetta,
467 U.S. at 488-89. An ECM readout indicating that the car was
experiencing a throttle malfunction might have qualified as such, but
experts on both sides had already tested the vehicle and obtained that
readout. The fact that the car had a malfunction is not the evidence at
issue. The expert could, and did, opine that a malfunction existed and
that it affected braking. In contrast, the evidence sought to be obtained,
if it existed, would have merely fleshed out and bolstered this opinion.

    Further, like Trombetta, appellant had alternate sources available to
elicit testimony to suggest that the throttle malfunctioned. The ECM
report specified the malfunction, and his experts could (and did) testify as
to some of the mechanics and timing of the malfunction. This also
supports a finding that the Bentley was not materially exculpatory under
Trombetta.

   Finally, the State did not use its expert who performed the additional
testing on the vehicle. Thus, appellant’s expert was on the same footing
as the State’s expert concerning the vehicle.

   This case is most similar to State v. Patterson, 199 So. 3d 253 (Fla.
2016). There, the defendant was charged with arson after a fire in his
house and garage, which contained his truck. Id. at 254-55. After his
insurance company paid him the proceeds of his policy on his truck, the
insurer destroyed the truck. Id. The defendant was later arrested and
charged with arson. Id. at 255. The State’s expert was able to inspect the
truck before it was destroyed. Id. The defendant’s fire investigation expert
had to rely on photographs of the burned truck (although he was able to
inspect the house). Id. The defendant’s expert was able to argue
deficiencies in the State’s expert’s analysis, and he testified that there
should have been examination of several electrical components, which the
State had failed to eliminate as a an accidental cause of the fire. Id. at
256. The Florida Supreme Court held that the truck

      clearly is not material exculpatory evidence. The most that
      could be said is that, if the components that Patterson’s expert
      identified as potential causes of the fire had been subjected to
      additional examination and testing, they might have supplied


                                     11
      evidence to further support Patterson’s theory that the fire
      was electrical and therefore accidental.

Id. at 257-58. The court then found no due process violation under
Youngblood. Id. at 259

  Similarly, in the present case, we agree with the trial court that the
additional testing that was precluded by the release of the Bentley was
merely potentially exculpatory.

    Appellant contends, in the alternative, that the trial court should have
given the jury an instruction on spoliation of evidence. However, the court
offered to give a curative instruction if the defense proposed one, but the
defense maintained that it could not propose one which would not impinge
on the appellant’s due process rights. Thus, appellant did not preserve
this claim. Moreover, defense counsel extensively questioned its expert
regarding the fact that he was not able to retest the vehicle after it was
located in Texas and regarding what an inspection might reveal. No
further request for an instruction was made. We thus find no abuse of
discretion in failing to give an instruction on spoliation of evidence.

 Knowledge of Injury or Death Was Not an Element of the Failure to
                     Render Aid Enhancement

   Appellant argues that the court erred in instructing the jury that an
element of the failure to render aid enhancement was that the defendant
“knew or should have known that the accident resulted in injury or death.”
He argues that actual knowledge is required. The State counters that such
knowledge is not required. As noted above, the record does not show that
the jury was instructed at all on knowledge of the injury or death. Instead,
the court instructed the jury that it must find that appellant “knew that
the crash had occurred” (Count I) or “knew that an accident occurred”
(Count II), and failed to give information or aid as required by law. Thus,
the jury instructions neither tracked the standard instructions, both of
which used “knew or should have known” standard, nor did it track the
parties’ proposed instructions, which added as an element whether the
defendant knew or should have known that the accident resulted in an
injury or death.

   In this unusual circumstance, although it does not appear that
appellant objected to the instructions as given, we nevertheless address
whether the instructions were required to include a provision regarding
knowledge of an injury or death. If this were an element of the crime, its
exclusion would constitute fundamental error. We hold, however, that

                                    12
knowledge of injury or death is not required for the failure to render aid
enhancement to either DUI manslaughter or vehicular manslaughter.

  Section 316.193(3), Florida Statutes (2010), provides for the penalty
when a person who was driving under the influence fails to render aid:

      Any person:

      (a) Who is in violation of subsection (1) [Driving while
          Intoxicated];

      (b)    Who operates a vehicle; and

      (c)    Who, by reason of such operation, causes or contributes
             to causing . . . .

      3.     The death of any human being or unborn child commits
             DUI manslaughter, and commits . . . .

      b.     A felony of the first degree, punishable as provided in s.
             775.082, s. 775.083, or s. 775.084, if:

      (I)    At the time of the crash, the person knew, or should
             have known, that the crash occurred; and

      (II)   The person failed to give information and render aid as
             required by s. 316.062.

(Emphasis added). Similarly, section 782.071(1), Florida Statutes (2010),
provides for vehicular homicide penalties for a failure to render aid:

      Vehicular homicide is:

      …..

      (b)    A felony of the first degree, punishable as provided in s.
             775.082, s. 775.083, or s. 775.084, if:

      1.     At the time of the accident, the person knew, or should
             have known, that the accident occurred; and

      2.     The person failed to give information and render aid as
             required by s. 316.062.


                                      13
      This paragraph does not require that the person knew that
      the accident resulted in injury or death.

(Emphasis added).    Section 316.062(1), Florida Statutes (2010), as
referenced in both statutes, sets forth when a person must give
information and aid:

      The driver of any vehicle involved in a crash resulting in injury
      to or death of any person or damage to any vehicle or other
      property which is driven or attended by any person shall give
      his or her name, address, and the registration number of the
      vehicle he or she is driving, . . . and shall render to any person
      injured in the crash reasonable assistance[.]

(Emphasis added). Thus, to enhance the penalty for failing to render aid
or give information, these statutes require knowledge only of the crash,
not knowledge of any injury or death. As section 316.062(1), Florida
Statutes, requires a person to stop and give information even for property
damage, the occurrence of the crash itself, which would at least result in
damage to property, would, by itself, require a person to stop and give
information (and, if there is an injured person, give aid). There is no
requirement that a person know of an injury or death, nor is there even a
“should have known” element. 1

   The Florida Legislature enacts criminal laws and can specify the
knowledge requirement for criminal acts. Our supreme court most
recently addressed this legislative power in State v. Adkins, 96 So. 3d 412
(Fla. 2012):

      “Enacting     laws—and        especially   criminal     laws—is
      quintessentially a legislative function.” Fla. House of
      Representatives v. Crist, 999 So. 2d 601, 615 (Fla. 2008).
      “[T]he Legislature generally has broad authority to determine
      any requirement for intent or knowledge in the definition of a
      crime.” State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004). We
      thus have recognized that generally “[i]t is within the power of
      the Legislature to declare an act a crime regardless of the
      intent or knowledge of the violation thereof.” Coleman v. State
      ex rel. Jackson, 140 Fla. 772, 193 So. 84, 86 (1939). “The
      doing of the act inhibited by the statute makes the crime[,]
      and moral turpitude or purity of motive and the knowledge or

1However, the failure to render aid enhancements under the DUI manslaughter
and vehicular homicide statutes by definition only apply where a death occurs.

                                     14
      ignorance of its criminal character are             immaterial
      circumstances on the question of guilt.” Id.

      Given the broad authority of the legislative branch to define
      the elements of crimes, the requirements of due process
      ordinarily do not preclude the creation of offenses which lack
      a guilty knowledge element.

Id. at 417.

    In a limited number of situations, “the omission of a mens rea element
from the definition of a criminal offense has been held to violate due
process.” Id. at 419. For instance, Adkins looked to Lambert v. California,
355 U.S. 225 (1957), involving a Los Angeles code provision requiring
felons to register within five days of entering the city. Adkins, 96 So. 3d
at 419. In Lambert, the Supreme Court held it to be a violation of due
process when applied to a person who had no knowledge of a duty to
register. 355 U.S. at 228. The Supreme Court explained that such
innocent passive conduct could not be penalized unless the defendant had
actual knowledge of the requirement. Id. Nevertheless, the Supreme
Court noted the narrowness of its ruling:

      There is wide latitude in the lawmakers to declare an offense
      and to exclude elements of knowledge and diligence from its
      definition. But we deal here with conduct that is wholly
      passive—mere failure to register. It is unlike the commission
      of acts, or the failure to act under circumstances that should
      alert the doer to the consequences of his deed. The rule that
      “ignorance of the law will not excuse” is deep in our law, as is
      the principle that of all the powers of local government, the
      police power is “one of the least limitable.”

Id. (emphasis supplied; citations omitted). Our supreme court followed
Lambert in Giorgetti and held that a failure to register as a sex offender
required a mens rea component, invalidating statutes which excluded
knowledge of the duty to register as an element of the crime. Giorgetti, 868
So. 2d at 517.

   Adkins also noted that the lack of a scienter requirement violated due
process “if a criminal statute’s means is not rationally related to its
purposes and, as a result, it criminalizes innocuous conduct.” Adkins, 96
So. 3d at 420 (quoting Schmitt v. State, 590 So. 2d 404, 413 (Fla. 1991)
(holding that a statute which criminalized possession of photos depicting


                                    15
a child’s clothed or unclothed genitals would have criminalized entirely
innocent conduct such as family photos)).

   In sections 316.193 and 782.071, Florida Statutes, the Legislature did
not omit a scienter requirement; it specifically provided that a person who
drove under the influence and was involved in a crash must have either
known or should have known of the crash to receive the enhancement.
The Legislature did not require any knowledge of death. It is the
Legislature’s prerogative to establish the scienter requirement.

   The limited categories of statutes in which courts have required a
knowledge requirement to satisfy due process are not applicable here.
Unlike Lambert, where the prohibited conduct was “wholly passive,” here,
a person must actively fail to render aid by leaving the scene of the crash.
Lambert, 355 U.S. at 228. And clearly, failing to render aid or give
information is not “innocent conduct,” but is most definitely rationally
related to the Legislative purpose. Adkins, 96 So. 3d at 420 (quoting
Giorgetti, 868 So. 2d at 517). “One of the main purposes of the statute is
to ensure that accident victims receive medical assistance as soon as
possible.” State v. Dumas, 700 So. 2d 1223, 1225 (Fla. 1997). A person
should stop, if he or she knows that she has been involved in a crash, for
no other reason than to ascertain whether any injury or damage has
occurred. To require a person involved in an accident to know of an injury
before he or she is required to stop would frustrate the very purpose of
sections 316.193 and 782.071, Florida Statutes. There is no due process
violation in the statutes’ failure to include a requirement that a defendant
knew (or should have known) of an injury or death before being required
to stop and render aid.

   Appellant relies on a series of cases that have required a knowledge of
injury element under Florida’s hit-and-run statute, section 316.027,
Florida Statutes (2010). We, however, conclude that the statutes are
sufficiently different that these cases do not apply here.

   Section 316.027(2), Florida Statues, provides that a driver involved in
a crash resulting in injury or death must immediately stop and remain at
the scene and comply with the duties in section 316.062, Florida Statutes.
A person who willfully violates this requirement commits a felony varying
degree, depending on the resulting injury or death. § 316.027(2)(a)-(c),
Fla. Stat. There is no specific scienter requirement. In contrast, both
sections 316.193 and 782.071, Florida Statutes, have specific knowledge
elements, requiring that the person committing DUI manslaughter or
vehicular homicide knew or should have known of the crash. In fact, the


                                    16
Legislature specifically excluded knowledge of injury or death as an
element in section 782.071(1), Florida Statutes.

   As it is within the Legislative prerogative to dispense with such a
requirement, see Adkins, 96 So. 3d at 417, it is not our function to rewrite
the statute to require knowledge of death as an element of the crime.
Although section 316.193(3)(c), Florida Statutes, does not have specific
language eliminating knowledge of injury or death as an element, it only
requires a failure to comply the duties in section 316.062, Florida Statutes,
which apply even for damage to property. Knowledge of a vehicular crash
would signify at least some damage to property, regardless of whether
death occurred.

   In State v. Mancuso, 652 So. 2d 370 (Fla. 1995), the Florida Supreme
Court held that the hit-and-run statute requires that the defendant either
knew or should have known of the resulting injury or death. Id. at 372.
The court based its decision on the weight of the majority of jurisdictions
with similarly worded statutes which required actual or constructive
knowledge of injury in order to find criminal liability under hit and run
statutes. Id. Those similarly-worded statutes did not include a knowledge
element. Where, however, a knowledge element has been included in hit-
and-run statutes, courts have construed the statutes in accordance with
their terms. For instance, where the statute provided “[e]ach person
operating a motor vehicle who is knowingly involved in an accident which
causes . . . injury or damage to property shall at once stop[,]” the state was
required to prove only knowledge of the accident and not the injury. See
State v. Johnson, 630 A.2d 1059, 1063 (Conn. 1983); see also N. Olmsted
v. Gallagher, 2 Ohio App. 3d 414, 416, 442 N.E.2d 470 (8th Dist.1981);
State v. Sabetta, 672 A.2d 451, 452-53 (R.I. 1996). Similarly, as sections
316.193(3)(c) and 782.071(1), Florida Statutes, both have knowledge
requirements, cases, such as Mancuso, involving statutes with no
knowledge requirement, are not dispositive of this issue. 2

   In sum, we hold that under the DUI manslaughter and vehicular
homicide statutes, the enhancements for failure to render aid and provide
information require that the person knew or should have known of the
crash or accident, but do not require the State to prove that the defendant

2 This distinction is further underlined by the legislative history of section
782.071, Florida Statutes. The specification that knowledge of injury or death is
not required was initially added in the 1996 session, shortly after Mancuso was
decided. See 1996 Fla. Sess. Law Serv. Ch. 96-330 (West). Section 316.193,
Florida Statutes, which does not contain a similar provision, was initially enacted
in 1999.

                                        17
knew or should have known of the death or injury of the victim. To require
such proof would defeat the purpose as noted in Dumas:

      This result-driven sanction implicitly recognizes the
      possibility that a fleeing driver’s failure to stop and render aid
      may be the reason that an injured person dies. Moreover,
      requiring proof that a driver had knowledge of death would
      lead to an absurd result: a driver who callously leaves the
      scene of a serious accident can avoid a [first]-degree felony
      conviction by disavowing knowledge of death.

Dumas, 700 So. 2d at 1226. Additionally, to the extent that the jury
instruction, as given, deviated from the standard instruction in stating
that appellant had to “know” that the accident occurred, the instruction
was erroneous. But as the state was held to a higher level of proof, there
is no error. Moreover, there is no dispute in the record that appellant
clearly knew that he had just hit a vehicle and was in a “bad” accident.
Thus, the knowledge of the accident component was uncontested at trial.
No reversible error occurred.

 The Blood Draw Was Not an Unlawful Search and Seizure, Based on
                     Exigent Circumstances

   Appellant argues that the blood draw obtained from him in the early
morning hours after the accident was made without a warrant and violated
the Fourth Amendment prohibition against unreasonable searches and
seizures. The State counters that exigent circumstances permitted the
warrantless blood draw. We agree with the State.

   Warrantless searches are “per se” unreasonable unless they fall within
a recognized exception to the warrant requirement. Katz v. United States,
389 U.S. 347, 357 (1967). A blood draw conducted under police direction
is considered a search and seizure under the Fourth Amendment.
Schmerber v. California, 384 U.S. 757, 767 (1966). However, an exception
to the warrant requirement exists “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.” Missouri
v. McNeely, 133 S.Ct. 1552, 1558 (2013) (quoting Kentucky v. King, 563
U.S. 452, 460 (2011)).

      A variety of circumstances may give rise to an exigency
      sufficient to justify a warrantless search . . . . As is relevant
      here, we have also recognized that in some circumstances law
      enforcement officers may conduct a search without a warrant

                                     18
      to prevent the imminent destruction of evidence. While these
      contexts do not necessarily involve equivalent dangers, in
      each a warrantless search is potentially reasonable because
      “there is compelling need for official action and no time to
      secure a warrant.”

Id. at 1558-59 (citations omitted) (quoting Michigan v. Tyler, 436 U.S. 499,
509-10 (1978)). Thus, “[t]o determine whether a law enforcement officer
faced an emergency that justified acting without a warrant, this Court
looks to the totality of circumstances.” Id. at 1559.

    In McNeely, the defendant was stopped for speeding, declined a breath
test, and was taken to a nearby hospital for blood testing. Id. at 1556-57.
The defendant did not consent, and the officer never attempted to secure
a warrant. Id. at 1557. The United States Supreme Court held that the
officer violated the Fourth Amendment, as the test was a routine
intoxicated driver case where no factors, apart from the natural dissipation
of blood alcohol, suggested an emergency. Id. at 1568. The Court held
that “the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood
test without a warrant.” Id. However, “the practical problems of obtaining
a warrant within a timeframe that still preserves the opportunity to obtain
reliable evidence” are relevant in determining whether a warrantless
search is reasonable. Id.

    McNeely discussed Schmerber v. California, 384 U.S. 757 (1966), as
fitting within the type of cases in which exigent circumstances would allow
a warrantless search. McNeely, 133 S.Ct. at 1559-60. In Schmerber, a
driver who had suffered injuries in a car crash was taken to the hospital.
Schmerber, 384 U.S. at 758. While at the hospital receiving treatment,
police arrested him for driving while under the influence and, over his
objection, ordered a blood test. Id. at 758-59. The Court held that the
warrantless blood test was permissible because the police “might
reasonably have believed that he was confronted with an emergency, in
which the delay necessary to obtain a warrant, under the circumstances,
threatened ‘the destruction of evidence.’” Id. at 770 (quoting Preston v.
United States, 376 U.S. 364, 367 (1964)). In addition to the natural
dissipation of blood alcohol, “time had to be taken to bring the accused to
a hospital and to investigate the scene of the accident,” and thus “there
was no time to seek out a magistrate and secure a warrant.” Id. at 770-
71.

   In this case, the court found that, based upon the timeline, exigent
circumstances were present. Appellant absented himself from the scene

                                     19
for over an hour and then returned but went to the hospital for treatment
of his own injuries before the investigators found the vehicle and body. By
the time the homicide investigator arrived and then went to the hospital,
nearly four hours had passed since the time of the crash, but less than
two hours from the time the body was discovered. The investigator
testified that it would have taken an additional two hours to obtain a
search warrant. Although a local police officer testified on behalf of
appellant that it would not have taken much time to get a warrant, it was
for the trial court to judge the credibility of the witnesses.

    This 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” McNeely,
133 S.Ct. at 1554 (emphasis added), the Court clearly signaled that in
some cases the destruction of evidence by the natural dissipation of
alcohol could constitute an exigent circumstance. If the circumstances in
Schmerber constituted exigent circumstances to justify a warrantless
blood draw, then the circumstances of this case present a far more
compelling reason to obtain a blood draw as soon as possible so as to
prevent the dissipation of alcohol in appellant’s system. We thus find no
Fourth Amendment violation. The court correctly denied the motion to
suppress.

    As to the remaining issues, we affirm without further discussion. We
note, however, that appellant challenges the admission of his blood draw
results on the basis that FDLE rules are insufficient to ensure scientific
reliability. We decided this issue adverse to appellant’s position in a prior
appeal. Goodman v. Fla. Dep’t of Law Enf’t, 203 So. 3d 909, 912 (Fla. 4th
DCA 2016). We certified a question to the Florida Supreme Court, which
has taken jurisdiction. Goodman v. Fla. Dep’t of Law Enf’t, 41 Fla. L.
Weekly D1247b (Fla. Oct. 14, 2016). We therefore do not address this
issue in this appeal.

                                Sentencing

   Finally, appellant contends that double jeopardy precludes his
conviction for both DUI manslaughter with failure to render aid and
vehicular homicide with failure to render aid. Although the court withheld
adjudication on the vehicular homicide charge, we have held that the
withholding of adjudication on an offense constitutes a “conviction” for
double jeopardy purposes. Griffin v. State, 69 So. 3d 344, 346 (Fla. 4th
DCA 2011) (adopting the reasoning of Bolding v. State, 28 So. 3d 956, 957
(Fla. 1st DCA 2010)). A conviction for DUI manslaughter and for vehicular
homicide involving a single victim violates double jeopardy. See Ivey v.

                                     20
State, 47 So. 3d 908 (Fla. 3d DCA 2010). Therefore, we direct that the trial
court vacate the conviction for vehicular homicide on remand. 3

   For the foregoing reasons, we affirm appellant’s conviction and
sentence for DUI manslaughter with failure to render aid but remand to
vacate his conviction for vehicular homicide.

TAYLOR and LEVINE, JJ., concur.

                             *         *          *

    Not final until disposition of timely filed motion for rehearing.




3  We recognize that the trial court withheld adjudication and sentencing on
vehicular homicide at the State’s request to hold it in abeyance pending the
results of the appeal of appellant’s conviction and sentence on DUI manslaughter.
We recognize the dilemma both the court and the State face in such a
circumstance. Resolving a double jeopardy issue on appeal where there are
substantial issues as to the other conviction may be a reasonable solution.

                                       21
