text:
    Ashok K. PANCHOLI, Appellant, v. Jessica Ashok PANCHOLI, Appellee.
    Case No. 5D17-1122
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 15, 2018
    Moses R. DeWitt, of DeWitt Law Firm, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

WALLIS, EDWARDS and EISNAUGLE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Veronica HARDY as the Personal Representative of the Estate of Anthony John Hardy, Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Jennifer Shanta King, and Coralee McCants, Appellees.
    Case No. 5D17-2297
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 1, 2018
    Patrick G Gilligan and Christopher A. Anderson, of Gilligan, Gooding, Franjola & Batsel, P.A., Ocala, for Appellant.
    Jeffrey E. Bigman and Brooke Gaffney, of Smith, Stout, Bigman & Brock, P.A., Daytona Beach, for Appellee, Progressive American Ins. Co.
    No Appearance for other Appellees.
   PER CURIAM.

AFFIRMED.

SAWAYA, BERGER and WALLIS, JJ., concur.


text:
    Michael GREENSPON, Appellant, v. BUTLER & HOSCH, P.A. and Michael Moecker, Appellees.
    Case No. 5D16-3716
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 15, 2018
    Michael C. Greenspon, Makawao, Haw., pro se.
    James H. Post, of Smith Hulsey & Busey, Jacksonville, for Appellee, Michael Moecker.
    No Appearance for Other Appellee.
   PER CURIAM.

AFFIRMED.

BERGER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Robert L. THOMAS, Appellant, v. DEPARTMENT OF REVENUE O/B/O Angela Y. THOMAS, Appellee.
    Case No. 5D17-3003
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 15, 2018
    Robert L. Thomas, Maitland, pro se.
    Pamela Jo Bondi, Attorney General, and Toni C Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

TORPY, EVANDER and EDWARDS, JJ., concur.


text:
    Brett HARTLEY, Appellant, v. 2D2G CORP. and Robert W. Russell, Appellees.
    Case No. 5D17-713
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 15, 2018
    Michael R. Yokan, Jacksonville, for Appellant.
    Pamela R. Masters and Scott W. Cichon, of Cobb & Cole, Daytona Beach, for Appellees.
   PER CURIAM.

AFFIRMED.

SAWAYA, WALLIS and EISNAUGLE, JJ., concur.


author: Gross, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. CC CHIROPRACTIC, LLC a/a/o Islande Napoleon, Respondent.
    No. 4D18-221
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Kenneth P. Hazouri of deBeaubien, Simmons, Knight, Mantzaris & Neal, LLP, Orlando, for petitioner.
    No response required for respondent.
   Gross, J.

State Farm Mutual Automobile Insurance Company petitions for second-tier certiorari review from an unelaborated appellate decision of the circuit court affirming a county court's final judgment for a provider in an action for personal injury protection (PIP) benefits. We dismiss the petition because the standard for granting second-tier certiorari review is not met.

Background

In 2011, following an automobile accident, State Farm's insured received chiropractic services from respondent, CC Chiropractic, LLC ("the provider"). Pursuant to an assignment of benefits from the insured, the provider directly billed State Farm $8,655 for the services.

State Farm paid $4,572.75 in PIP benefits, which was 80% of the amount State Farm determined was reasonable. See § 627.736(1)(a), Fla. Stat. (2010) (requiring PIP insurers to pay "[e]ighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services"). In calculating the reasonable expenses, State Farm used 200% of the allowable amount under the 2011 Medicare fee schedule. See § 627.736(5)(a)(2)(f) (allowing an insurer to limit reimbursement to 80 percent of "the allowable amount under the participating physicians schedule of Medicare Part B.").

In 2014, the provider filed a breach of contract action in county court seeking the full amount of its charges. The parties stipulated that the provider's services were medically necessary and related to the insured's accident.

The provider moved for summary judgment arguing that State Farm had improperly applied the statutory cap on reimbursement because the fee schedule had not been incorporated into the policy in this case. See Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc. , 141 So.3d 147, 158 (Fla. 2013) (concluding that insurer was not permitted to limit reimbursements to the Medicare fee schedules where the policy made no reference to the fee schedules and provided no notice of its election to use the fee schedules); see also Kingsway Amigo Ins. Co. v. Ocean Health, Inc. , 63 So.3d 63 (Fla. 4th DCA 2011). The provider contended that no genuine issue of material fact existed as to the reasonableness of its charges.

The provider attached an affidavit from its corporate representative averring that the charges for each of the services was reasonable and within the usual and customary range for providers in that geographical area in 2011. The representative was the director of billing for the provider and for several similar facilities. According to the affidavit, he had reviewed market surveys and researched billing practices of other providers in the community. He had worked for more than 10 years in medical billing and had personal knowledge of the reasonable, usual, and customary prices charged by other providers in the community for the services at issue. The prices were based in part on the market surveys and the 75th percentile of the Physician Fee Reference Guide in 2010.

State Farm filed a memorandum opposing summary judgment arguing that the reasonableness of the charges presented a jury question. In support of the motion, it filed an affidavit from a chiropractor (Dr. Bradley Simon) opining that the provider's charges were excessive and unreasonable. Simon's affidavit stated that he relied on his 15 years of experience providing chiropractic care in the community, the usual and customary charges and rates accepted by his practice, and his knowledge of the market and reimbursement rates in South Florida. He explained that during the last 4 to 5 years nearly all PIP insurers he had billed paid him 200% of the Medicare Part B fee schedule. He had accepted payments from Health Maintenance Organizations (HMOs) at less than 100% of the Medicare fee schedule, and Preferred Provider Organizations (PPOs) have paid him at rates less than 200% of the Medicare schedule. He explained that, during the period at issue in this case, his own practice had voluntarily accepted the reimbursement rate used by State Farm in this case, and in his opinion, this reimbursement rate was reasonable.

The county court entered an order granting the provider's motion for summary judgment. The court agreed that there was no genuine issue of material fact as to the reasonableness of the charges. The court explained that the provider had met its initial burden of establishing that its charges were within the reasonable range for the services.

The county court concluded that State Farm had not carried its burden of coming forward with contrary evidence to create a factual issue. The court noted that State Farm had not identified any authority, and the court was aware of none, supporting the argument that reasonableness of a provider's charge in a PIP case is always a jury question. The court noted that multiple county courts had granted summary judgment as to reasonableness in PIP cases and had not been reversed by the circuit court. It also noted that, in United Auto. Ins. Co. v. Hallandale Open MRI, LLC , 145 So.3d 997 (Fla. 4th DCA 2014), this Court denied second-tier certiorari review of a circuit court's affirmance of summary judgment on reasonableness in a PIP case.

As to State Farm's reliance on Dr. Simon's affidavit, the county court ruled that Dr. Simon was not qualified to give an expert opinion on the reasonableness of the charges. The court found State Farm did not establish that Simon's testimony satisfied section 90.702, Florida Statutes (2013), or Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny, for admitting expert opinion testimony. The court noted that Simon's affidavit relied on what he charges and what he has been reimbursed for identical services at his facility. The court found this testimony did not qualify to be admitted as expert opinion testimony and was more akin to "pure opinion" testimony that has been rejected by the legislature. See Perez v. Bell S. Telecomm., Inc. , 138 So.3d 492, 497 (Fla. 3d DCA 2014). The court concluded, therefore, that Simon's affidavit could not be considered and did not create a genuine issue of material fact as to the reasonableness of the provider's charges.

The county court then entered a final judgment in the provider's favor for $2,351.43 (the difference between 80% of the provider's full charge and what State Farm had paid) plus pre-judgment interest.

State Farm appealed to the circuit court. After full briefing, the circuit court issued a per curiam opinion affirming, without explanation. The circuit court denied State Farm's motion for rehearing.

State Farm now petitions this court for second-tier certiorari review of the circuit court's appellate decision. State Farm argues: (1) the circuit court disregarded evidentiary standards and burdens governing summary judgment proceedings, and Dr. Simon's affidavit "unquestionably" created a triable issue of fact as to the reasonableness of the charges; (2) the circuit court's alleged error in affirming the final judgment departs from the essential requirements of law resulting in a miscarriage of justice; and (3) the circuit court denied State Farm procedural due process by affirming the trial court's decision to strike Dr. Simon's testimony.

Analysis

The decision in this case is driven by the narrow scope of second-tier certiorari review of a circuit court acting in its appellate capacity. As we have previously observed:

Second-tier certiorari is not a second appeal; it is extraordinarily limited, and narrow in scope. See Custer Med. Ctr. v. United Auto. Ins. Co ., 62 So.3d 1086, 1093-94 (Fla. 2010) ; see also Achord v. Osceola Farms Co ., 52 So.3d 699 (Fla. 4th DCA 2010). Review is limited to whether the circuit court afforded procedural due process and whether it applied the correct law, or stated another way, whether the court departed from a clearly established principle of law. Custer , 62 So.3d at 1092. To be a departure from a clearly established principle of law, the error must be so serious that it results in a miscarriage of justice. Id. at 1093. Ordinary legal errors, or application of the correct law incorrectly under the facts, are not sufficient grounds for a district court to grant second-tier certiorari. Id. Circuit courts are intended to have final appellate jurisdiction over county court cases.

Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co ., 103 So.3d 866, 868 (Fla. 4th DCA 2012).

Here, State Farm's appeal to the circuit court challenged the county court's application of a procedural rule and an evidentiary statute: the former is reviewed de novo, and the latter under an abuse of discretion standard. Assuming that the county court made legal errors, the circuit court's per curiam affirmance was not a violation of a clearly established principle of law resulting in a miscarriage of justice so as to permit our review by second-tier certiorari. See State v. Leroy , 819 So.2d 169, 171 (Fla. 4th DCA 2002) ; State Farm Mutual Auto. Ins. Co. v. Pembroke Pines MRI, Inc. , 171 So.3d 814, 817 (Fla. 4th DCA 2015).

State Farm's arguments for reversing the county court's ruling amount to an attempt at a second appeal. State Farm fails to show that the circuit court failed to apply the correct law. At best, State Farm argues that the circuit court committed an ordinary legal error through its affirmance. Nothing shows that the circuit court applied the incorrect law as opposed to applying the correct law incorrectly under the facts.

State Farm effectively asks us to review the correctness of the county court's decision. Even if we agreed that State Farm had shown a genuine issue of material fact regarding the reasonableness of the charges, the limited scope of second-tier certiorari review does not permit us to grant a second appeal. We emphasize that, in declining review, we express no opinion on the correctness of the decisions below.

Similarly, State Farm's arguments concerning a denial of procedural due process are directed not at what occurred on appeal at the circuit court level, but at the proceedings in county court. State Farm contends that the county court denied State Farm its due process right to call Dr. Simon as a witness at trial. This exceeds the scope of second-tier certiorari review. See Stranahan House, Inc. v. City of Fort Lauderdale , 967 So.2d 1121, 1127 (Fla. 4th DCA 2007) ; Pharmcore, Inc. v. City of Hallandale Beach, 946 So.2d 550, 552 (Fla. 4th DCA 2006). The petition does not show that the circuit court denied State Farm notice or a meaningful opportunity to be heard in the appeal.

In addition, the circuit court's per curiam affirmance means that "the decision cannot serve as precedent in another proceeding." Stilson v. Allstate Ins. Co. , 692 So.2d 979, 981 (Fla. 2d DCA 1997). This makes it unlikely to merit the extraordinary remedy of second-tier certiorari. Dep't of Highway Safety & Motor Vehicles v. Hofer , 5 So.3d 766, 772 (Fla. 2d DCA 2009) ("A circuit court's decision will generally not merit certiorari review if it is issued without a written opinion or is particularly fact-dependent or fact-specific because it lacks precedential value.").

The Florida Supreme Court has strongly cautioned district courts against expanding second-tier certiorari jurisdiction.

"[A]ppellate courts must exercise caution not to expand certiorari jurisdiction to review the correctness of the circuit court's decision." Nader v. Dep't of Highway Safety & Motor Vehs. , 87 So.3d 712, 723 (Fla. 2012) ; see also Haines City Cmty. Dev. v. Heggs , 658 So.2d 523, 526 (Fla. 1995). "[T]he departure from the essential requirements of law necessary for the issuance of a writ of certiorari is something more than a simple legal error." Allstate Ins. Co. v. Kaklamanos , 843 So.2d 885, 889 (Fla. 2003) (citing Ivey v. Allstate Ins. Co. , 774 So.2d 679, 682 (Fla. 2000) ). Certiorari is appropriate "only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Id.

Futch v. Florida Dep't of Highway Safety & Motor Vehicles , 189 So.3d 131, 132 (Fla. 2016) (quashing a district court decision that granted second-tier certiorari where no miscarriage of justice existed). Here, State Farm asks us to expand certiorari jurisdiction and effectively grant a second appeal to review the correctness of the county court's decision granting summary judgment on a PIP claim for just over $2,300.

Even if a legal error occurred, no miscarriage of justice exists. If it has not done so already, in any future cases, State Farm may achieve the result it seeks (that is, capping reimbursement to providers at 200% of the applicable fee schedule) by clearly electing this option in its policies. See Virtual Imaging , 141 So.3d at 158. It would be inappropriate for us "to announce a 'miscarriage of justice' simply to provide precedent where precedent is needed." Stilson , 692 So.2d at 983.

To the extent that existing law provides a way for us to review county court decisions, it exists in section 34.017, Florida Statutes (2017), and Florida Rule of Appellate Procedure 9.160. Id. The statute and rule permit the county court to certify questions that have "statewide application" and are of "great public importance" or "[w]ill affect the uniform administration of justice." § 34.017(1)(a) & (b), Fla. Stat (2017). As Judge Altenbernd has written:

[ Section 34.017 ] is similar to the constitutional provision allowing district courts to invoke the supreme court's jurisdiction by certifying a question of great public importance. Art. V, § 3(4), Fla. Const. In the district court context, however, the questions are presented in published opinions that serve as statewide precedent. In the county court context, the questions are presented in unpublished orders encouraging the district courts to create precedent. Thus, the concept of a question of great public importance in section 34.017 is somewhat broader than in the constitution. County court judges should understand that this provision can be used to create precedent needed for the orderly administration of justice in their courts. We rely upon them to screen their cases so that the district courts may receive an occasional appeal rather than numerous petitions for certiorari.

Stilson , 692 So.2d at 983.

Petition for writ of certiorari is dismissed .

May and Kuntz, JJ., concur.

      The affidavit states, "In many cases, my practice has and would continue to accept payment at less than the amount reimbursed by the carrier here. Based on this, it is my opinion that the fees billed in this case were excessive and unreasonable in regards to their price."

      A denial of discretionary second-tier certiorari review should not be construed to mean that we approve of the underlying decisions.

      About the same time, the circuit court issued a number of opinions affirming judgments entered in the same or similar circumstances. Including this case, State Farm has filed a total of 58 second-tier certiorari petitions raising the same or similar arguments.


author: Kuntz, J.

text:
    Byron MCGRAW, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-232
    District Court of Appeal of Florida, Fourth District.
    March 21, 2018 Question Certified by May 16, 2018
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals an order denying his motion to suppress the results of a warrantless blood draw in a DUI case. The county court found the blood draw was an unconstitutional search under the Fourth Amendment, but denied the motion to suppress based on the "good faith" exception to the warrant requirement. The county court also certified the following question to be of great public importance:

Does the following sentence in § 316.1932(1)(c), Florida Statutes,

Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such [blood] test.

remain constitutionally valid under the Fourth Amendment to the United States Constitution and Article 1, Section 12 of the Florida Constitution in light of Missouri v. McNeely, [569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696] (2013), State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), and Birchfield v. North Dakota, --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) ?

We exercised our discretionary jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(4)(A) to answer the certified question.

We address the case before us, and the certified question, in multiple parts. First, we discuss the facts relevant to this appeal. Second, we discuss the Defendant's motion to suppress and the court's ruling. Third, we discuss Florida's implied consent law. Fourth, we analyze the Supreme Court's decisions in Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and Birchfield v. North Dakota, --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and decisions from courts around the country that have traveled this same path. Fifth, we apply the Supreme Court's decisions in McNeely and Birchfield to the case before us.

In applying the Supreme Court's decisions, we rephrase the certified question:

Under the Fourth Amendment, may a warrantless blood draw of an unconscious person, incapable of giving actual consent, be pursuant to section 316.1932(1)(c), Florida Statutes (2016) ("Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to [a blood draw and testing]."), so that an unconscious defendant can be said to have "consented" to the blood draw?

We answer the rephrased certified question in the affirmative, and affirm the county court's denial of the Defendant's motion to suppress.

Background

i. The Accident and Investigation

The Defendant was involved in a single car rollover accident, causing damage to his vehicle and injury to himself. An officer assigned to the special operations division of the Riviera Beach Police Department arrived at the scene around 8:00 a.m. When he arrived, officers had established a crash site, and Riviera Beach Fire Rescue was "cutting away at portions of the vehicle" trying to extricate the Defendant.

The officer testified that the Defendant was unconscious and unresponsive to Fire Rescue. While standing "two to three feet behind the Fire Rescue personnel" he could detect the odor of alcohol from the Defendant, his clothing, and the vehicle.

Fire Rescue removed the Defendant from the vehicle and transported him to the emergency room. The officer followed the ambulance to the hospital, a trip that took around five minutes. At the hospital, the officer again made contact with the Defendant, who remained unconscious. The officer testified that after the medical professionals completed treating the Defendant, they brought the Defendant into a room and placed in "some sort of device that was actually just keeping his head still and straight at that time." The officer observed bruises and scratches, but observed no traumatic injuries to his body.

The officer testified that, at this point, he was investigating a possible driving under the influence case and "wanted to request ... a sample of his blood." The officer "attempted to rub [the defendant's] sternum to see if there would be any kind of reaction from pain compliance. And the registered nurse who was assisting [the officer] also conducted a sternum rub, to which we had no effects at all." At that time, the officer requested that the registered nurse assigned to the Defendant draw his blood. After they drew his blood, and about thirty to sixty minutes after arriving at the hospital, the officer left the hospital and had no further contact with the Defendant or the hospital about the Defendant.

ii. The Defendant's Motion to Suppress

The State later charged the Defendant by amended information with two counts of driving under the influence causing or contributing to injury to persons or property (enhanced). Arguing "the U.S. Supreme Court [recently] held that warrantless blood draws are not permissible incident to arrest, and are not per se permissible under the exigent circumstances exception," the Defendant moved to suppress the blood draw.

The court held a hearing on the Defendant's motion to suppress, hearing testimony from the officer, and subsequently rendered an order denying the motion to suppress and certifying a question of great public importance. The court held Florida's implied consent law does not provide consent for a warrantless blood draw. The court then found the officer's testimony supported no other exception to the warrant requirement. Finally, the court found that the officer proceeded in an objectively reasonable reliance on the validity of the implied consent law. As a result of the officer's good faith reliance on a presumptively valid statute, the court denied the motion to suppress. The Defendant was convicted, and appeals the court's ruling.

Analysis

12"We review motions to suppress under a mixed standard, deferring to the trial court's factual findings but reviewing legal conclusions de novo." Strachan v. State, 199 So.3d 1022, 1024 (Fla. 4th DCA 2016). And, the constitutionality of a statute presents a pure question of law subject to de novoreview. Braddy v. State, 219 So.3d 803, 819 (Fla. 2017).

i. Florida's Implied Consent Law

3 The Fourth Amendment to the United States Constitution protects "persons, houses, papers and effects against unreasonable searches." Amend. IV, U.S. Const. In Florida, we construe this right "in conformity with [and] as interpreted by the United States Supreme Court."Art. I, § 12, Fla. Const. In other words, "the search and seizure provision of the Florida Constitution imposes no higher standard than that of the Fourth Amendment to the United States Constitution." State v. Hetland, 366 So.2d 831, 836 (Fla. 2d DCA 1979).

45 The Defendant argues that the blood draw violated his Fourth Amendment rights. First, we begin with the premise that the "compulsory administration of a blood test ... plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In other words, a blood draw is a "search" under the Fourth Amendment. Therefore, the Defendant is initially correct that, to compel a blood draw, the State must either: (a) obtain a warrant; or (b) establish a valid exception to the warrant requirement. It is undisputed that the State did not obtain a warrant. Rather, the State relies on an exception to the warrant requirement-namely, the Defendant's consent based on Florida's implied consent law.

"All 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood alcohol content] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." McNeely, 569 U.S. at 161, 133 S.Ct. 1552.

6 Generally, our implied consent law is codified in chapter 316, Florida Statutes. See§§ 316.1932, .1933, .1934, Fla. Stat. (2015). These statutes "essentially require all persons accepting a license to drive in Florida to consent to a blood-alcohol test upon being arrested for driving under the influence." Montes-Valeton v. State, 216 So.3d 475, 481 n.1 (Fla. 2017) (quotation omitted).

Specifically at issue here is section 316.1932(1)(c) :

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, 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 .... Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to [a blood draw and testing].

The Defendant argues this statute is insufficient, by itself, to satisfy the Fourth Amendment. Further, he argues it is unconstitutional "to the degree it provides involuntary implied consent to perform a blood draw any time a person suspected of driving under the influence is unconscious at a hospital-this is because implied consent is not the same as consent for Fourth Amendment purposes."

In addition to recent United States Supreme Court decisions, the Defendant cites two Florida decisions in support of his position. SeeLiles, 191 So.3d at 486 ; Williams v. State, 167 So.3d 483, 488 (Fla. 5th DCA 2015), vacated, No. SC15-1417, 2016 WL 6637817 (Fla. Nov. 9, 2016). While we can certainly look to the decisions of our sister court, we first consider decisions from the United States Supreme Court, as, again, Florida provides no Fourth Amendment protection beyond that determined by the Supreme Court.

ii. The Supreme Court's Decisions in McNeely and Birchfield

Two recent United States Supreme Court cases control our resolution of this case.

First, in Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), the defendant was stopped by a Missouri police officer and declined to use a portable breath-test device to measure his blood alcohol level. Id.at 145, 133 S.Ct. 1552. The officer arrested him, and took him to a local hospital for blood testing. Id. He moved to suppress the blood test, arguing the compelled taking of his blood without a warrant violated the Fourth Amendment. Id.at 146, 133 S.Ct. 1552. The trial court granted his motion, and the Missouri Supreme Court affirmed. The United States Supreme Court granted certiorari to determine "whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases." Id.at 145, 133 S.Ct. 1552. Justice Sotomayor, writing for a fractured majority, rejected Missouri's argument for a per se exception to the warrant requirement in DUI investigations based on exigent circumstances. Id. The Court held that "that exigency in this context must be determined case by case based on the totality of the circumstances." Id.

Three years after McNeely, and after the accident at issue here, the Supreme Court issued Birchfield v. North Dakota, --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield involved three consolidated cases, two arising from North Dakota and a third from Minnesota. Danny Birchfield accidentally drove his car off a North Dakota highway, and later refused to consent to a blood draw. Id.at 2170-71. William Robert Bernard, Jr. had gotten a truck stuck in a river at a boat ramp in Minnesota, and refused to allow an officer to give him a breath test. Id.at 2171. An officer saw the third petitioner, Steve Michael Beylund, unsuccessfully try to turn into a driveway. Unlike Birchfield and Bernard, Beylund consented to a blood draw at a nearby hospital after the officer read him North Dakota's implied consent warning. Id.at 2171-72.

The issue before the Supreme Court was "whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream." Id.at 2172. The Court first reviewed its Fourth Amendment jurisprudence in the context of DUI cases; more specifically in the context of the search-incident-to-arrest doctrine. Id.at 2173-76. As with searches of cell phones and DUI investigations, the situation before the Court could not have been envisioned in the founding era. Therefore, the Court applied a balancing test to determine "whether to exempt a given type of search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Id.at 2176 (internal citation omitted).

Examining the effect of breath tests and blood tests on an individual's privacy interests, the Court reaffirmed its earlier conclusion that a breath test does not implicate significant privacy concerns. Id. (citing Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ). It noted that the results of a breath test capture only limited information-the amount of alcohol in a defendant's breath; and participation in a breath test is not an experience likely to enhance any embarrassment to the defendant. Id.at 2177.

Blood tests, the Court found, "are a different matter." Id.at 2178. Blood tests pierce the skin and are far more intrusive than a breath test. And, the Court explained, a blood test "places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading." Id.at 2178.

After determining the scope of the privacy interest, the Court turned to the states' asserted need to obtain blood alcohol readings. Id. On that issue, there is no doubt the states have a legitimate interest in ensuring the safety of the roads. Id. The Court rejected the dissent's argument that "an officer making an arrest for drunk driving should not be allowed to administer a BAC test unless the officer procures a search warrant or could not do so in time to obtain usable test results." Id.at 2179. This argument contravened their "decisions holding that the legality of a search incident to arrest must be judged on the basis of categorical rules." Id. Further, "requiring the police to obtain a warrant in every case would impose a substantial burden but no commensurate benefit." Id.at 2181-82.

The Court then turned to the constitutionality of warrantless breath and blood tests. As for breath tests, the Court found "that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great." Id.at 2184. The Court reached a different answer about blood tests, stating "[b]lood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant." Id.

Although not relevant to any of the three petitioners in Birchfield, but relevant to our case, the Court commented on blood draws of unconscious drivers:

It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.

Id.at 2184-85.

On first read, this statement appears to support Judge Gross's conclusion that Florida's implied consent law is unconstitutional as it applies to unconscious drivers. But Birchfield actually reaffirmed the constitutionality of implied consent laws, stating its "prior opinions have referred approvingly to the general concept of implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply." Id.at 2185. Despite other conclusions in the opinion, the Court specifically stated that "nothing we say here should be read to cast doubt on them." Id.

Nevertheless, implied consent laws did not escape unscathed. Instead, the Court stated that "[i]t is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test." Id. We now turn to this analysis.

iii. Birchfield and McNeely Do Not Render Florida's Implied Consent Law Unconstitutional

The Defendant and the concurrence both believe Birchfield and McNeely render our implied consent law unconstitutional. We disagree.

7 In fact, it is on that issue-the continued constitutionality of certain implied consent laws-on which we resolve this case. After noting that all fifty states have enacted some form of implied consent laws, Birchfield held that implied consent laws that do not impose criminal penalties are constitutionally valid. If no implied consent law could survive the Fourth Amendment, the Court would have stated as much. There was no reason for the Supreme Court to separately categorize implied consent laws imposing criminal penalties from those imposing administrative and evidentiary penalties, if both categories fail to satisfy the Fourth Amendment. Instead, we are comfortable concluding the Court did so to excise those that impose criminal penalties from constitutional protection, while leaving those that merely impose administrative or evidentiary penalties. Because Florida's implied consent law falls in the latter category, it remains constitutionally valid.

Additionally, the Supreme Court held that the reasonableness of blood tests "must be judged in light of the availability of the less intrusive alternative of a breath test." Birchfield, 136 S.Ct. at 2184. When an officer is investigating an unconscious defendant, a breath test is not an alternative. As such, the effectiveness of the breath test that an officer may give to a conscious defendant is not relevant to an unconscious defendant.

Interpreting Birchfield is a path well-traveled. In a number of these cases the defendant, like the Defendant here, was unconscious. See, e.g., State v. Speelman, No. L-16-1295, --- N.E.3d ----, 2017 WL 6628527 (Ohio Ct. App. Dec. 29, 2017) ; Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017) ; State v. Dalton, No. 2016AP2483-CR, 377 Wis.2d 730, 2017 WL 3078331 (Wis. Ct. App.), review granted, 378 Wis.2d 427, 905 N.W.2d 840 (Wis. 2017) ; State v. Romano, 369 N.C. 678, 800 S.E.2d 644 (2017) ; People v. Hyde, 393 P.3d 962 (Colo. 2017) ; State v. Havatone, 241 Ariz. 506, 389 P.3d 1251 (2017).

In other cases, the defendant was conscious. See, e.g., State v. Hi Ta Lar, 908 N.W.2d 181 (S.D. 2018) ; Vondrachek v. Comm'r of Pub. Safety, 906 N.W.2d 262 (Minn. Ct. App. 2017) ; Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017) ; State v. Vargas, 404 P.3d 416 (N.M. 2017) ; State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017) ; State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017) ; State v. Pettijohn, 899 N.W.2d 1 (Iowa 2017) ; State v. Boyd, 156 A.3d 748 (Me. 2017) ; Wolfe v. Commonwealth, 67 Va.App. 97, 793 S.E.2d 811 (2016) ; State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016) ; State v. Charlson, 160 Idaho 610, 377 P.3d 1073 (2016).

Of these opinions, we find the Colorado Supreme Court's opinion most persuasive. In Hyde, the defendant drove his pickup truck into a light pole rendering him unconscious. 393 P.3d at 964. An officer took the defendant to a local hospital and, under Colorado's implied consent law, directed the hospital to draw the defendant's blood to establish his blood alcohol level. Id. The defendant's motion to suppress was granted by the trial court, based on his argument that the blood draw was unconstitutional. Id.

The Colorado Supreme Court recognized that "the McNeely plurality underscored the utility of implied consent laws such as Colorado's Expressed Consent Statute." Id.at 968 (citing McNeely, 569 U.S. at 156-57, 133 S.Ct. 1552 ). Further, the court recognized that Birchfield reaffirmed the Supreme Court's approval of implied consent laws. Id.at 968 (citing Birchfield, 136 S.Ct. at 2185 ). As we do, the Colorado Supreme Court recognized that the United States Supreme Court's approval of implied consent laws was not without limitation, but determined the limitations are not applicable to the Colorado law:

True, the Court's approval extended only to implied consent laws that impose civil penalties if a driver refuses to take a blood test; the Court considered laws that impose criminal penalties on a driver's refusal to be going a step too far.
But Colorado's Expressed Consent Statute falls into the former category-the Statute imposes only civil, and not criminal, penalties on drivers who refuse to submit to a blood test. Birchfield therefore sanctions the warrantless blood draw that was conducted here on the basis of statutory consent.

Id.at 968 (internal citation omitted). Based on this interpretation, the Colorado Supreme Court found that "[b]y driving in Colorado, Hyde consented to the terms of the Expressed Consent Statute, including its requirement that he submit to blood-alcohol testing under the circumstances present here." Id.at 969. That consent "satisfied the consent exception to the Fourth Amendment warrant requirement" and "the blood draw was constitutional." Id.

Justice Eid wrote a persuasive opinion concurring in the court's judgment, explaining that "[t]he Court in Birchfield reasoned that traditional implied consent laws like Colorado's-namely, laws that deem a person to have consented to BAC testing by virtue of driving, with administrative and evidentiary consequences for refusal to test-are reasonable under the Fourth Amendment." Id.at 971. Justice Eid analogized another Supreme Court case, Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), a case involving implied consent in a heavily regulated industry. Id.at 971-72. In that case, the question presented "was whether implied consent could justify an OSHA search of a plumbing business." Id.at 972 (citing Marshall, 436 U.S. at 313, 98 S.Ct. 1816 ). Justice Eid explained that the "Court recognized that '[t]he businessman in a regulated industry in effect consents to the restrictions placed upon him.' " Id.

In her view, Marshall and Birchfield"looked at the overall statutory regime in which the search was to take place, not the individual facts at the time the search was conducted, to determine whether implied consent would apply." Id.at 972. As a result, Justice Eid concluded, consent can be inferred from context and "[d]riving on the roads and being engaged in a highly regulated industry are two such contexts from which consent can be inferred." Id. And, in light of Birchfield, the defendant's consent is implied from the context of driving. Id. ; see alsoState v. Howes, 373 Wis.2d 468, 893 N.W.2d 812, 834 (2017) (Gableman, J., concurring) ("Far from disapproving the concept of consent by conduct within the context of a driver's implied consent, the Court [in Birchfield ] expressly endorsed the general validity of state implied consent laws that infer motorists' consent to testing from the conduct of driving.").

The Virginia Court of Appeals agreed, concluding that Birchfield"has not implicated the constitutional validity of Virginia's implied consent statute as it relates to civil penalties for refusing a blood alcohol test." Wolfe, 793 S.E.2d at 814. That court relied on the same distinction in Birchfield that we do, recognizing that "the Court referred approvingly to the general concept of implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply [but] drew a distinction between statutes that impose civil penalties and those that impose criminal penalties." Id.

Also relying on the Birchfield distinction is the Minnesota Court of Appeals, which noted that, in Birchfield, all three of the "challenged laws criminalizedthe refusal to submit to post-arrest testing." Vondrachek, 906 N.W.2d at 271 (emphasis in original). But, it noted, Birchfield"expressly exempted" implied consent laws that do not criminalize the refusal to submit to a test. Id. Thus, because the Minnesota law at issue did not criminalize a refusal to submit to a test, it survived Birchfield. Id. Similarly, the Idaho Supreme Court upheld the denial of a motion to suppress, concluding that the defendant "gave his implied consent to having his blood drawn by virtue of Idaho's implied consent statute." Charlson, 377 P.3d at 1080.

We recognize that not all courts addressing this issue after Birchfield have reached the same conclusion. Yet many of those decisions turn on the specifics of the implied consent law at issue. For example, even though the North Carolina Supreme Court has rejected the implied consent law as an exception to the warrant requirement, in that case, the state conceded the statute was unconstitutional. Romano, 800 S.E.2d at 648, 653 ("To be sure, the implied consent statute, as well as a person's decision to drive on public roads, are factors to consider when analyzing whether a suspect has consented to a blood draw, but the statute alone does not create a per se exception to the warrant requirement.").

The Arizona Supreme Court concluded that the unconscious clause in Arizona's statute "can be constitutionally applied only when case-specific exigent circumstances prevent law enforcement officers from obtaining a warrant." Havatone, 389 P.3d at 1255. But, the court also held that "[w]here police have probable cause to believe a suspect committed a DUI, a nonconsensual blood draw from an unconscious person is constitutionally permissible if, under the totality of the circumstances, law enforcement officials reasonably determine that they cannot obtain a warrant without significant delay that would undermine the effectiveness of the testing." Id.

Finally, we briefly discuss the two Florida decisions upon which the Defendant relies. Neither Liles nor Williams directly address the issue here: whether the State may compel a blood draw from an unconscious defendant based on Florida's implied consent law.

In Liles, and relevant here, the state relied on a different, but similar, implied consent law as the basis for compelling a blood draw. 191 So.3d at 487. But the defendant in Liles explicitly withdrew his consent before the blood was drawn. Id. ("[E]ven if we agree ... [the defendants] impliedly consented to the blood draws by driving, they explicitly revoked that consent when they refused to submit to the blood draws.").

We agree with Liles's conclusion that when a defendant specifically withdraws his or her consent, the state cannot compel a blood draw. In that situation, the State would not be able to rely on implied consent as an exception to the warrant requirement; and the defendant would be subject to the administrative and evidentiary penalties provided by the implied consent law (and approved of in Birchfield ).

The other case, Williams, is also unhelpful. As noted above, the decision cited by the Defendant was vacated by the Florida Supreme Court. On remand, the court held: "Birchfield has made our task significantly easier. Under the Florida Constitution, our Fourth Amendment jurisprudence is governed by decisions of the United States Supreme Court. Thus, we adopt the holding in Birchfield that breath-alcohol tests are permissible under the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement."Williams, 210 So.3d at 775-76 (internal citation omitted). We also agree with the ultimate holding in Williams, that the State may compel a breath-alcohol test of a driver suspected of driving under the influence.

Conclusion

The distinction between implied consent laws which impose criminal penalties for non-compliance and those which impose administrative or evidentiary penalties for non-compliance is important. The United States Supreme Court has determined only the former violates the Fourth Amendment. If the Court intended both categories of implied consent laws to suffer the same fate, it would have said so. Because Florida's law does not impose criminal penalties, the statute does not violate the Fourth Amendment. And, with an unconscious defendant, the "less intrusive alternative of a breath test" is not available. In effect, the blood test is the only option.

As a result, we need not address the Defendant's argument that the court erred in applying the good faith exception to the warrant requirement. The good faith exception is inapplicable when the search itself did not violate the Fourth Amendment. However, if required to reach it, we would agree with Judge Gross's opinion dissenting in part and concurring in part, and we would affirm the court's application of the good faith exception.

The court's denial of the Defendant's motion to suppress is affirmed for the reasons stated in this opinion.

Affirmed.

Gerber, C.J., concurs.

Gross, J., dissents in part and concurs in part, with opinion.

Gross, J., dissenting in part, concurring in part.

I dissent from the majority's determination of the constitutionality of section 316.1932(1)(c). The majority has applied a backward-looking jurisprudence contrary to the Fourth Amendment policy established by the Florida Supreme Court under Article I, Section 12 of the Florida Constitution. That policy is to move in the direction of the constitutional winds set in motion by the United States Supreme Court, not to wait for explicit direction from Washington on how to rule.

This policy is demonstrated by Jardines v. State, 73 So.3d 34 (Fla. 2011), aff'd, 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) and Tracey v. State, 152 So.3d 504 (Fla. 2014). In Jardines, the Florida Supreme Court held that a dog sniff at a private residence was a search under the Fourth Amendment, requiring probable cause. 73 So.3d at 55-56. Not until the United States Supreme Court affirmed Jardines in 2013 did that court expressly rule on whether a warrantless dog sniff search on the porch of a private residence was a search within the meaning of the Fourth Amendment. 569 U.S. at 11-12, 133 S.Ct. 1409. In Tracey, the Florida Supreme Court held that police officers' use of cell site location information to track a defendant on public roads was a search falling under the Fourth Amendment. 152 So.3d at 525-26. The United States Supreme Court will confront that issue this term. SeeCarpenter v. United States,No. 16-402, 2017 WL 5903554 (argued Nov. 29, 2017).

This case is factually well-developed and the direction of the constitutional law is clear. To paraphrase a Nobel Laureate, you don't need to be a weatherman to know which way the legal wind blows.

We should find the statute unconstitutional but affirm the county court because the officer acted in good faith in ordering the blood draw.

Introduction and Background

Byron McGraw appeals an order denying his motion to suppress the results of a warrantless blood draw in a DUI case. The Palm Beach County Court denied the motion to suppress and certified the following question to be of great public importance:

Does the following sentence in § 316.1932(1)(c), Florida Statutes,

Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such [blood] test.

remain constitutionally valid under the Fourth Amendment to the United States Constitution and Article 1, Section 12 of the Florida Constitution in light of Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), State v. Liles, 191 So.3d 484 (Fla. 5th DCA 2016), and Birchfield v. North Dakota, --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) ?

We should answer the certified question in the negative, holding that, under the Fourth Amendment, a blood draw of an unconscious person, incapable of giving consent, must be done pursuant to a warrant or to a recognized exception to the warrant requirement, such as exigent circumstances; a statutorily created consent "implied" by the act of driving on Florida roads does not satisfy the Fourth Amendment, so an unconscious defendant cannot be said to have "consented" to the blood draw.

Nonetheless, I agree to affirm the trial court's denial of the motion to suppress based on the good faith exception to the exclusionary rule, because the officer requesting the blood draw made an objectively reasonable mistake of law. SeeHeien v. North Carolina, --- U.S. ----, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).

McGraw was charged with two counts of driving under the influence causing or contributing to injury to person or property. The evidence of his impairment came from a warrantless blood draw performed pursuant to section 316.1932(1)(c), Florida Statutes (2016), while he was unconscious at the hospital. Section 316.1932(1)(c), which is part of Florida's implied consent statutory scheme, provides in relevant part:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, 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 .... Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test.

Id.

McGraw moved to suppress the results of the warrantless blood draw as a "violation of his rights under the Fourth and Fourteenth Amendment[s] to the United States Constitution, and Article I, Section 12 of the Florida Constitution." Relying upon Birchfield, 136 S.Ct. at 2160, and McNeely, 569 U.S. at 141, 133 S.Ct. 1552, he contended the blood draw was unlawful because "warrantless blood draws are not permissible incident to arrest, and are not per sepermissible under the exigent circumstances exception." McGraw argued there were no exigent circumstances that justified the warrantless blood draw and that the "police made no efforts to get a warrant for [his] blood," despite the ability to do so.

After a motion to suppress hearing, Judge Hanser made the following findings of fact which are supported by the record:

2. On April 16, 2016, at approximately 8:00 a.m., Officer De Santis of the Riviera Beach Police Department responded to a one-car accident .... Fire-Rescue was extricating Defendant from his vehicle when Officer De Santis arrived. Defendant's car had rolled over and was lying on its roof on the highway.

3. Defendant was the only person in the vehicle. Defendant was unconscious and unresponsive when Officer De Santis arrived and while he was being extricated from the vehicle. The officer stood close behind the Fire-Rescue crew as it worked to free Defendant from the vehicle and he noticed the odor of alcohol emanating from Defendant's skin, mouth and clothes.

4. Fire-Rescue transported Defendant to St. Mary's Hospital Emergency Room as a trauma alert patient.

5. Officer De Santis went to St. Mary's Hospital, a travel time of five to six minutes.

6. Defendant was unconscious when Officer De Santis arrived at the hospital. Defendant remained unconscious during the entire time the officer had contact with Defendant, a total time of not more than one hour, including time at the scene of the accident and at the hospital.

7. Defendant was lying with a neck brace on in the emergency room but he had no apparent "traumatic injuries"; bumps and bruises were present.

8. Attempts to revive Defendant using a sternum rub were unsuccessful and Officer De Santis did not communicate with Defendant at any time.

9. Officer De Santis requested that hospital personnel take a blood draw of Defendant. He provided the blood draw kit used by hospital personnel to obtain the draw.

10. During cross-examination, Officer De Santis stated the length of time of Defendant's stay at the hospital did not influence his decision to obtain the blood draw. The officer did not know when Defendant might be discharged from the hospital.... [T]he officer did not determine whether it would be impossible or impracticable to have Defendant submit to a breath test. He did not attempt to obtain a search warrant prior to taking the blood draw.

In a thoughtful order, Judge Hanser wrote that because section 316.1932(1)(c) did "not provide consent as required under the Fourth Amendment for a blood draw, based on recent constitutional jurisprudence," McGraw did not consent to a blood draw. The court identified the facts that led to its conclusion:

Defendant remained unconscious during the entire time Officer De Santis had contact with him, making common law voluntary consent impossible to obtain. Had it been possible to communicate with Defendant, Defendant would have had the opportunity to decide whether he would provide a blood sample or not, his refusal then requiring the officer to inform Defendant of implied consent. Properly informed of implied consent, Defendant would have been able to weigh the potential consequences of providing the blood sample against the real consequences of refusing.

(Footnote omitted).

The trial court also found that no exigent circumstances existed, stating that "[t]he total time the officer spent with Defendant was no more than one hour, from the time the officer arrived on scene, went to the hospital where Defendant had been taken, had the blood drawn, and left the hospital," and that "[t]he officer made no attempt to obtain a warrant for the blood draw."

Notwithstanding these conclusions, the trial court denied Defendant's motion to suppress based on the "good faith" exception to the exclusionary rule, finding that "it was reasonable for Officer De Santis to have a good faith belief in the constitutional validity of a warrantless blood draw authorized by section 316.1932(1)(c), Florida Statutes, under the circumstances [presented]."

Warrantless Blood Draws and Implied Consent

The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution enshrine the "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Amend. IV, U.S. Const.; Art. I, § 12, Fla. Const. The Florida Constitution requires section 12 to "be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." Art. I, § 12, Fla. Const.

"A blood draw conducted at the direction of the police is a search and seizure under the Fourth Amendment." Liles, 191 So.3d at 486 (citing Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ). "To comply with the Fourth Amendment, law enforcement officers must obtain a warrant or consent for a blood draw, or there must be some other exception to the warrant requirement." Id.at 486. "When, as here, no warrant is obtained, '[t]he state has the burden to prove that an exception to the warrant requirement applies.' " Id. (quoting Kilburn v. State, 54 So.3d 625, 627 (Fla. 1st DCA 2011) ).

There are five recognized exceptions to the warrant requirement: (1) consent; (2) search incident to a lawful arrest; (3) probable cause to search but with exigent circumstances; (4) hot pursuit; and (5) stop and frisk. Reed v. State, 944 So.2d 1054, 1058 (Fla. 4th DCA 2006). The exception pertinent to this case is consent.

It is undisputed that McGraw did not explicitly consent to the warrantless blood draw at the hospital, as he was unconscious at the time. However, the State contends that Defendant's consent was implied pursuant to section 316.1932(1)(c), and his consent was not withdrawn due to his unconsciousness.

Two recent cases of the United States Supreme Court have solidified and expanded the Fourth Amendment protection applicable to breath and blood tests incident to investigations of alcohol-related driving offenses.

In McNeely, the Court clarified that the natural metabolization of alcohol in the bloodstream is not "a per seexigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases." 569 U.S. at 145, 133 S.Ct. 1552. The court held that the existence of exigent circumstances "must be determined case by case based on the totality of the circumstances." Id. Focusing on nonconsensual blood testing, a plurality of the Court wrote that it was "aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them." Id.at 162, 133 S.Ct. 1552. The plurality noted that "state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest." Id.

The Supreme Court elaborated on the "significant privacy interest" in compelled blood draws in Birchfield, 136 S.Ct. at 2160. Unlike breath tests, blood tests "implicat[e] significant privacy concerns." Id.at 2178 (quoting Skinner v. Ry. Labor Executives' Assoc., 489 U.S. 602, 626, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ). "They 'require piercing the skin' and extract[ing] a part of the subject's body." Id.at 2178 (quoting Skinner, 489 U.S. at 625, 109 S.Ct. 1402 ). "In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple [blood alcohol] reading." Id.

In differentiating blood tests from breath tests, the Supreme Court suggested that, for an unconscious defendant, the preferred method of obtaining blood is through a warrant:

It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.

Id.at 2184-85.

The Supreme Court in Birchfield then discussed the consent exception to the warrant requirement and "implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply." Id.at 2185. The Court cited to a consent to search case where the consent was the product of a conscious mind and, based on the totality of the circumstances, was voluntarily given and not the result of duress or coercion, express or implied. Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ).

The Court next referred to two cases imposing Fourth Amendment limitations on the extent to which consent may be inferred from "context" or conduct. Id.at 2185. In Florida v. Jardines, 569 U.S. at 8-9, 133 S.Ct. 1409, the Court rejected the notion that a warrantless dog sniff search at the front door of a home could be upheld on the theory that the officer had an implied invitation or license to approach the front door. Similarly, Marshall v. Barlow's Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), observed that the "owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents." Birchfield's citation to these cases suggests that the Court recognized that the Fourth Amendment limits government's attempt to imply a person's consent.

The central issue in Birchfield was whether state implied consent laws could impose criminal penalties upon persons who refused to submit to a blood test. Birchfield held that under implied consent laws there was "a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads"-"motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." 136 S.Ct. at 2185-86.

Birchfield and many of the state cases cited by the majority concern the parameters for securing consent to a search from a conscious defendant. Under Birchfield, implied consent laws permit law enforcement to apply some coercion to secure consent to a blood draw, subject to Fourth Amendment limitations-threatening a suspect with administrative sanctions is permissible, threatening criminal penalties is not. This is consistent with the notion of "consent" under the Fourth Amendment, which "has come to mean that set of circumstances that the law will tolerate as an exception to the probable cause or warrant requirement." Ruiz v. State, 50 So.3d 1229, 1231 (Fla. 4th DCA 2011).

The majority has read Birchfield too broadly. The case concerned a consent obtained from a conscious defendant. It cannot be read beyond its facts to authorize an implied consent from an unconscious suspect.

Although the precise holding of Birchfield did not address the extent to which an unconscious defendant has "consented" to a blood test, the reasoning of that case supports the conclusion that the statutorily implied consent of an unconscious defendant under section 316.1932(1)(c) is "not equivalent to Fourth Amendment consent." Liles, 191 So.3d at 486.

Under reams of case law, Fourth Amendment consent is the product of a conscious mind. An unconscious defendant cannot be coerced or intimidated. An unconscious defendant is incapable of "conduct, gestures, or words" that can indicate consent. State v. Gamez, 34 So.3d 245, 247 (Fla. 2d DCA 2010). For an unconscious defendant, if exigent circumstances do not exist, "the police may apply for a warrant if need be." Birchfield, 136 S.Ct. at 2185. Birchfield leads to the conclusion that because of the significant privacy concerns surrounding blood draws, consent to a blood draw cannot be indirectly implied from the act of driving on Florida roads. The government cannot create a statutory sidestep of the Fourth Amendment to "imply" a consent where actual consent or exigent circumstances do not exist. From an unconscious defendant, blood may be drawn pursuant to a warrant or under the exigent circumstances exception to the warrant requirement. See, e.g., Goodman v. State, 229 So.3d 366, 380-82 (Fla. 4th DCA 2017). Only a conscious defendant may voluntarily consentto a blood draw consistent with the Fourth Amendment.

Good Faith and the Exclusionary Rule

I agree with Judge Hanser that the good faith exception to the exclusionary rule applies to this case.

McGraw challenges Judge Hanser's application of the good faith exception. He argues that a reasonable officer in Officer De Santis's position should have known that a warrant was necessary to perform the blood draw, absent consent or exigent circumstances, and that implied consent is not the functional equivalent of consent for Fourth Amendment purposes.

"The exclusionary rule is a judicially-created remedy adopted to protect Fourth Amendment rights by deterring illegal searches and seizures." Liles, 191 So.3d at 489 (citing Davis v. U.S., 564 U.S. 229, 236-37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ). "It is intended to deter police misconduct, not to remedy the prior invasion of a defendant's constitutional rights." Id.at 489 (citing Montgomery v. State,69 So.3d 1023, 1033 (Fla. 5th DCA 2011) ). Given the purpose of the exclusionary rule, "evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975) ).

In Leon, the United States Supreme Court established the good faith exception to the exclusionary rule, holding that improperly secured evidence need not be excluded where officers acted in the "objectively reasonable" belief that their conduct did not violate the Fourth Amendment. 468 U.S. at 918-19, 104 S.Ct. 3405. Although the Leon test was specifically tailored to search warrants, Courts have extended the good faith exception to situations where an officer conducts a warrantless search under the authority of a statute, but the statute is later found to be unconstitutional. SeeDavis, 564 U.S. at 229, 131 S.Ct. 2419 ; Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987).

In Birchfield, the Court recognized that in a blood draw case, where there is a Fourth Amendment violation but "the search was carried out pursuant to a state statute," it is appropriate to address the good faith exception under Heien,135 S.Ct. at 530. Birchfield, 136 S.Ct. at 2186 n.9.

In Heien, an officer stopped the defendant's car after observing that one of the car's two rear brake lights was not working. 135 S.Ct. at 534. During a consent search of the vehicle, drugs were recovered, and the defendant was subsequently arrested. Id. The defendant moved to suppress the evidence seized from the car, arguing that the stop and search violated the Fourth Amendment. Id.at 535. After a hearing, the trial court denied the motion, finding that the faulty brake light had given the officer reasonable suspicion to stop the defendant. Id.

On appeal, the North Carolina Court of Appeals reversed, determining that driving with a single working brake light was not illegal under North Carolina law, and therefore the stop violated the Fourth Amendment. Id. The state appealed and the North Carolina Supreme Court reversed, finding that the officer who initiated the stop "could have reasonably, even if mistakenly, read the [statute] to require that both brake lights be in good working order." Id.

The United States Supreme Court granted certiorari. Id. The Court found that because the North Carolina statute at issue was ambiguous as to what was required, it was "objectively reasonable for an officer in [the officer]'s position to think that [the defendant]'s faulty right brake light was a violation of North Carolina law." Id.at 540. Accordingly, "because the mistake of law was reasonable, there was reasonable suspicion justifying the stop." Id."The Fourth Amendment tolerates only reasonablemistakes, and those mistakes-whether of fact or of law-must be objectivelyreasonable." Id.at 539 (emphasis in original).

Applying the Good Faith Exception to the Present Case

Assuming that the blood draw was unconstitutional, McGraw argues that Officer De Santis did not act in good faith because at the time of the blood draw, Liles"recognized that statutory implied consent [is] not equivalent to Fourth Amendment consent." 191 So.3d at 487. He asserts that, based on Liles, an objectively reasonable officer in Officer De Santis's position should have known that he could not rely on implied consent alone to justify a warrantless search.

The "good faith" aspect of this case is controlled by Heien. Like the officer in Heien, it was reasonable for Officer De Santis to think that his actions were authorized by the plain language of section 316.1932(1)(c). If anything, Officer De Santis's reliance on the statute is more compelling than the officer's reliance in Heien because in Heien, the statutory language was ambiguous and could be interpreted in multiple ways; in this case, the plain language of the statute was unambiguous and the statute, on its face, plainly authorized the warrantless blood draw here at issue. Liles concerned implied consent as applied to a conscious defendant who explicitly refused a blood draw. At the time of McGraw's arrest, no Florida appellate decision considered the Fourth Amendment/implied consent tension as it applied to an unconscious defendant incapable of refusal.

Because the language of section 316.1932(1)(c) is clear and there was no appellate decision calling the statute into question, McGraw's reliance on Carpenter v. State, 228 So.3d 535 (Fla. 2017), is misplaced.

Unlike this case, Carpenter involved an officer's reliance on an appellate opinion that was not final. The Florida Supreme Court considered whether the exclusionary rule applied to a warrantless search of a defendant's cell phone incident to arrest based on an officer's reliance on a district court decision which, at the time, was under review by the Supreme Court. 228 So.3d at 538. Subsequent to the defendant's arrest, the Florida Supreme Court ruled that such searches were unlawful. Id.at 537. On this basis, the defendant moved to suppress the evidence found on his cell phone, relying on Smallwood v. State(Smallwood II), 113 So.3d 724 (Fla. 2013). Id. The Court ultimately held that the good faith exception did not apply to the warrantless search, noting that

in the Smallwood I opinion, the First District certified the precise question to this Court with regard to the new subject of cell phone searches as one of great public importance, thus placing law enforcement officers on actual notice that the case was subject to further consideration on the face of the opinion.

Id.at 540 (emphasis in original). The Court found that the "certified question ... only furthers the notion that the officers in [the defendant]'s case should nothave relied on Smallwood I as being the final controlling judicial precedent in this area of constitutional law while the case was certified to this Court for final decision." Id.at 541 (emphasis in original). Thus, an officer's reliance on a district court opinion is not objectively reasonable if the case is "not final, well-settled, unequivocal, or clearly established." Id.at 540.

Unlike Carpenter, no Florida appellate decision squarely addressed the unconscious defendant situation here at issue, making it reasonable for the officer to rely on the statute's plain language. An objectively reasonable officer in Officer De Santis's position would not have known that a warrantless blood draw was not authorized under these circumstances. The Fourth Amendment does not hold officers to the standard of law professors.

For these reasons, I concur in the majority's decision to affirm the ruling of the County Court.

ON MOTION FOR CERTIFICATION OF QUESTION

On March 21, 2018, we answered the following rephrased question from the county court:

Under the Fourth Amendment, may a warrantless blood draw of an unconscious person, incapable of giving actual consent, be pursuant to section 316.1932(1)(c), Florida Statutes (2016) ("Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to [a blood draw and testing]."), so that an unconscious defendant can be said to have "consented" to the blood draw?

McGraw v. State , 44 Fla. L. Weekly D618 (Fla. 4th DCA Mar. 21, 2018). We answered the rephrased certified question in the affirmative, and affirmed the county court's denial of the Defendant's motion to suppress. Id .

The Defendant moves to certify the question to the Florida Supreme Court. We grant the motion to the extent stated herein, and certify to the Florida Supreme Court that the question above is one of great public importance. See Fla. R. App. P. 9.030(a)(2)(A)(v) ("The discretionary jurisdiction of the supreme court may be sought to review ... decisions of district courts of appeal that ... pass upon a question certified to be of great public importance").

Question certified.

      The Florida Supreme Court vacated the Fifth District's decision for reconsideration in light of the Supreme Court's issuance of Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). On remand, the Fifth District found its "task significantly easier" and concluded "that breath-alcohol tests are permissible under the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement." Williams v. State , 210 So.3d 774, 776 (Fla. 5th DCA 2017).

      Justices Scalia, Ginsburg, Kennedy, and Kagan joined Parts I, II-A, II-B, and IV of Justice Sotomayor's opinion. Justices Scalia, Ginsburg, and Kagan joined Parts II-C and III of Justice Sotomayor's opinion. Justice Kennedy wrote a separate concurring opinion, explaining his view that the case did not require an analysis of the issues discussed in Parts II-C and III of Justice Sotomayor's opinion. The Chief Justice wrote a separate opinion, joined by Justices Breyer and Alito, concurring in the Court's conclusion that the totality of the circumstances should govern a Fourth Amendment inquiry. Yet the Chief Justice dissented from the majority opinion based on his view that, in the context of DUI investigations, "proper rule is straightforward." The Chief Justice would require a warrant when there was sufficient time for the officer to obtain one but, otherwise, would find the dissipation of the alcohol in the blood stream presents a sufficient exigent circumstance to provide an exception to the warrant requirement. Finally, Justice Thomas filed a separate dissenting opinion to explain his view that the dissipation of alcohol in the blood stream constitutes an exigent circumstance and, as a result, a warrantless blood draw does not violate the Fourth Amendment.

      Walk on your tiptoes
      Don't try "No-Doz"
      Better stay away from those
      That carry around a fire hose
      Keep a clean nose
      Watch the plain clothes
      You don't need a weatherman
      To know which way the wind blows
      Bob Dylan, Subterranean Homesick Blues, BOB DYLAN, https://bobdylan.com/songs/subterranean-homesick-blues/ (last visited Feb. 21, 2018).

      Courts analyze the totality of the surrounding circumstances at or near the time of the warrantless search to determine whether a conscious defendant's consent is freely and voluntarily given under the Fourth Amendment. See , e.g. , State v. Ojeda , 147 So.3d 53 (Fla. 3d DCA 2014) ; Ruiz , 50 So.3d at 1231 ; State v. Evans , 9 So.3d 767 (Fla. 2d DCA 2009).

      Smallwood v. State (Smallwood I ), 61 So.3d 448 (Fla. 1st DCA 2011).

      Judge Gross dissented from our holding in this case. However, he concurs in the Court's decision to grant the motion to certify the question as one of great public importance.


author: Gerber, C.J.

text:
    Audrie BLOOM, Appellant, v. IRONHORSE PROPERTY OWNERS ASSOCIATION INC., a Florida not-for-profit-corporation, Richard Litner and Donald Gundermann, Appellees.
    No. 4D17-1985
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Audrie Bloom, Boynton Beach, pro se.
    Therese A. Savona and Kathryn L. Ender of Cole, Scott & Kissane, P.A., Miami, for appellee Ironhorse Property Owners Association Inc.
   Gerber, C.J.

A property owners association's former board member appeals from the circuit court's final judgment confirming a voluntary binding arbitration award in the association's favor. Because the former board member's appeal does not raise a constitutional issue, we dismiss the appeal for lack of jurisdiction pursuant to section 44.104, Florida Statutes (2016):

(10) An appeal of a voluntary binding arbitration decision shall be taken to the circuit court and shall be limited to review on the record and not de novo, of:
(a) Any alleged failure of the arbitrators to comply with the applicable rules of procedure or evidence.
(b) Any alleged partiality or misconduct by an arbitrator prejudicing the rights of any party.
(c) Whether the decision reaches a result contrary to the Constitution of the United States or of the State of Florida.
....
(12) ... No further review shall be permitted unless a constitutional issue is raised.

§ 44.104(10), (12), Fla. Stat. (2016) (emphasis added). See also Kaplan v. Epstein , 219 So.3d 932, 933 (Fla. 4th DCA 2017) ("Pursuant to section 44.104, when parties agree to submit to voluntary binding arbitration, their appeal is to the circuit court, and no further review is permitted unless a constitutional issue is raised.").

Dismissed.

May and Damoorgian, JJ., concur.


author: WARNER, J.

text:
    BLOK BUILDERS, LLC d/b/a Ikon Builders, a Florida limited liability company, Appellant, v. Pedro KATRYNIOK, Mastec North America, Inc., a Florida corporation, and BellSouth Telecommunications, LLC, d/b/a AT & T Florida, Appellees.
    No. 4D16-1811
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami, for appellant.
    Kimberly Kanoff Berman of McIntosh Sawran & Cartaya, P.A., Fort Lauderdale, and Michael J. Lynott and Crystal L. Arocha of McIntosh Sawran & Cartaya, P.A., Miami, for appellees MasTec North America, Inc. and BellSouth Telecommunications, LLC.
    ON MOTION FOR CLARIFICATION, REHEARING AND/OR REHEARING EN BANC
   WARNER, J.

We deny Appellant's Motion for Clarification, Rehearing and/or Rehearing En Banc, withdraw the previous opinion and substitute the following opinion in its place.

Blok Builders, LLC, appeals a final judgment determining that Blok owes Mastec North America, Inc., and BellSouth Telecommunications, LLC, contractual indemnity and a defense in a personal injury action, as well as awarding attorney's fees. Blok contends that its subcontract with Mastec, which required Blok to indemnify Mastec for its own negligence, did not comply with section 725.06, Florida Statutes (2008), and, thus, its contractual indemnification provisions were unenforceable. The statute, however, does not apply to the contract in this case; therefore, the trial court correctly determined that Blok owed Mastec a duty to indemnify and defend. The trial court also found that Blok must indemnify BellSouth, but neither the contract between Blok and Mastec nor the contract between Mastec and BellSouth requires Blok to indemnify BellSouth. We therefore reverse the trial court's final judgment as to BellSouth.

BellSouth sought to improve its telecommunications services by accessing and altering its network in a project called "Lightspeed Project." As part of the project, it contracted with Mastec to perform all work necessary to provide access to the underground lines located in neighborhood easements. In turn, Mastec then subcontracted with Blok to perform the excavation work necessary for BellSouth to access its previously existing underground utility lines.

After Blok performed excavation near the driveway in one of the neighborhoods covered by the project, a homeowner was walking down his driveway when it suddenly collapsed, causing him to fall and sustain permanent serious injuries. The homeowner sued Blok for damages due to his injuries and then amended his complaint to add Mastec and BellSouth for their own negligence in contributing to the dangerous condition.

Mastec and BellSouth crossclaimed against Blok, alleging that Blok had agreed to contractually indemnify them through the subcontract between Blok and Mastec. The contract between Blok and Mastec contained a provision requiring Blok to indemnify Mastec for Mastec's own negligence:

16. Indemnification. a) Subcontractor [Blok] agrees to indemnify and hold harmless Contractor [Mastec] and its directors, officers, employees and agents (collectively the "Indemnitees") and each of them from and against any loss, costs, damages, claims, expenses (including attorneys' fees) or liabilities, causes of action, lawsuits, penalties, or demands (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or nonperformance of the Work contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default, negligence (whether active or passive) of Subcontractor or its employees, agents or subcontractors, regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent, or contributing) by any act, omission, default or negligence (whether active or passive) of the indemnitees, or any of them ... Said indemnity shall include but not be limited to injury or damage which is or is alleged to be caused in whole or in part by any act, omission, default or negligence of Subcontractor or its employees, agents or subcontractors....
c) Where not specifically prohibited by law, Subcontractor further specifically agrees to indemnify and hold harmless the Indemnitees from all Liabilities , by reason of any injury, death, or damage to any person or property whatsoever, caused by, arising from, incident to, or connected with the performance or nonperformance of the work contemplated by this Agreement which is, or is alleged to be, caused in part (whether joint, concurrent, or contributing) or in whole by any act, omission, default, or negligence (whether active or passive) of the Indemnitees .

(emphasis added).

The contract further required Blok to defend any claim arising out of the performance of the contract and brought against the Indemnitees, as well as to pay any costs and attorney's fees incurred by the Indemnitees in defending any action or in enforcing the indemnification agreement.

The agreement between Blok and Mastec incorporated the terms of the contract between Mastec and BellSouth. That agreement contained a similar indemnification provision requiring Mastec to indemnify BellSouth:

Article 9. Indemnity
The Contractor [Mastec] shall indemnify and hold harmless the Company [BellSouth] and its directors, officers, employees and agents (collectively the "Indemnitees ") and each of them from and against any loss, costs, damages, claims, expenses (including attorneys' fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or nonperformance of the work contemplated by this Contract which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default, negligence (whether active or passive) of Contractor or its employees, agents or subcontractors, regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them ....

(emphasis added).

Blok contended that the indemnification provisions were invalid because the contract did not comply with section 725.06, Florida Statutes (2008). The statute applies to certain construction contracts which obligate the indemnitor to indemnify the indemnitee for the indemnitee's own negligence. Such a contract is unenforceable unless it contains a monetary limitation on the extent of such liability. Blok contended that because there was no such limitation in the Blok/Mastec contract, the indemnification provision was void and unenforceable. Mastec and BellSouth argued that section 725.06 did not apply to this contract, and in any case, a monetary limitation was contained in the BellSouth/Mastec contract which, through an incorporation clause, applied to the Blok/Mastec contract.

Both sides moved for summary judgment. Ultimately, the trial court entered summary judgment in favor of Mastec and BellSouth, concluding that the contracts required Blok to indemnify and defend both Mastec and BellSouth in the underlying personal injury lawsuit. It also entered an award of attorney's fees to both Mastec and BellSouth. Blok appeals this final judgment.

We review de novo a summary judgment. Overseas Inv. Group v. Wall St. Electronica, Inc. , 181 So.3d 1288, 1291 (Fla. 4th DCA 2016) (citing Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000) ). De novo review applies to the interpretation of a contract. See Royal Palm Hotel Prop., LLC v. Deutsche Lufthansa Aktiengesellschaft, Inc. , 133 So.3d 1108, 1110 (Fla. 3d DCA 2014). It also applies to the interpretation of a statute. See Toler v. Bank of America, Nat'l Ass'n , 78 So.3d 699, 701-02 (Fla. 4th DCA 2012).

Blok argues that section 725.06, Florida Statutes, applies to its contract, and because the contract contains no monetary limitation on its obligation to indemnify Mastec for Mastec's own negligence, the indemnification provision is unenforceable. Based upon the plain wording of the statute, however, we conclude that section 725.06 does not apply to this contract.

Section 725.06(1) covers contracts for construction as follows:

Any portion of any agreement or contract for or in connection with, or any guarantee of or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith ... shall be void and unenforceable unless the contract contains a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any.

(emphasis added).

Where a statute is clear and unambiguous, the words of the statute must be given their plain and obvious meaning. Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 1144, 137 So. 157, 159 (1931) ). Further, a court is "without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power." Id. (emphasis removed) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams , 212 So.2d 777, 778 (Fla. 1st DCA 1968) ).

Blok contends that because it entered into a contract for excavation, the statute governs. Excavation, however, must be associated with the "construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance ...." § 725.06(1), Fla. Stat. (2008) (emphasis added). The project in this case did not involve such construction. The master contract between BellSouth and Mastec involved the laying and maintenance of utility lines. The contract does not involve a building, structure, appurtenance, or appliance. Therefore, given its plain and ordinary meaning, the statute does not govern the contractual provisions.

Blok cites several cases in which section 725.06 has been applied, but all involve either the construction of a building or structure. It relies most heavily on Camp, Dresser & McKee, Inc. v. Paul N. Howard Co. , 721 So.2d 1254 (Fla. 5th DCA 1998), in which the statute was applied to the construction of concrete tunnels. But it is clear from the opinion that the court considered the concrete tunnel to be a "structure," and thus, the statute was applicable. Similarly, in Griswold Ready Mix Concrete, Inc. v. Reddick , 134 So.3d 985, 986 (Fla. 1st DCA 2012), the statute was applied to a contract for a lease of a concrete pump truck, as the truck was being used in the laying of a foundation of a building, which type of contract is covered by the statute.

Mastec suggests that section 725.06 does not apply to utility contracts, which are quasi-governmental. In particular, it cites to Church & Tower of Fla., Inc. v. BellSouth Telecomm., Inc. , 936 So.2d 40 (Fla. 3d DCA 2006), which involved a contract with a similar indemnity provision as in this case. The contract in question provided for the installation of utility poles, and the court enforced the indemnity provision but never addressed section 725.06. Mastec and BellSouth suggest that this is because it is a utility contract, and section 725.06 does not apply to utility contracts. Blok, however, has provided us the briefs of that case, and it appears from the argument that neither party argued the application of section 725.06. Thus, we do not decide this case on the basis that section 725.06 can never apply to a contract with a utility.

As to BellSouth, we conclude that the court erred in determining that Blok owed a duty of indemnity and a duty to defend BellSouth. Under the Blok/Mastec contract, Blok agreed to indemnify Mastec and its directors, officers, and agents. Nowhere does it require Blok to indemnify BellSouth. And, although the subcontract incorporated the provisions of the BellSouth/Mastec contract, that contractual indemnification provision required that Mastec, not its subcontractors, indemnify BellSouth. Where a contract is clear and unambiguous, "courts cannot indulge in construction or interpretation of its plain meaning." BMW of North America, Inc. v. Krathen , 471 So.2d 585, 587 (Fla. 4th DCA 1985) (quoting Hurt v. Leatherby Ins. Co. , 380 So.2d 432 (Fla. 1980) ). And, when a contract is silent on a matter, the court cannot impose contractual rights and duties under the guise of construction. Id. Thus, the court erred in declaring that Blok had a duty to indemnify and to defend BellSouth.

Because Blok had no contractual duty to indemnify or defend Bell South, we also reverse the award of attorney's fees and costs as to BellSouth. In the trial court, however, one law firm represented both Mastec and BellSouth, and the trial court entered a single award of fees and costs for the joint representation. The transcript of the fee hearing does not reveal any attempt to determine whether there were fees sought solely for work done in representation of BellSouth and not joint representation. Although Blok did not object to the single award, the court had already ruled that BellSouth was entitled to indemnity and obviated the need for a separate finding with respect to BellSouth. On remand, if Blok can identify fees due solely to the representation of BellSouth, rather than Mastec, in the evidence presented at the fee hearing, the trial court should reduce the attorney's fees judgment and award to Mastec only those fees attributable to representation of Mastec or joint representation. Otherwise, we find no merit in Blok's challenge to the award of attorney's fees to Mastec.

For the foregoing reasons, we affirm the trial court's final judgment determining Blok's duty to indemnify and defend Mastec. We reverse the final judgment as to BellSouth in all respects and remand for the exclusion from the award of attorney's fees to Mastec those fees solely directed to the representation of BellSouth.

LEVINE, J., and BUCHANAN, LAURIE E., Associate Judge, concur.

      "Appurtenances are things belonging to another thing as principal and which pass as incident to the principal thing." Chackal v. Staples , 991 So.2d 949, 955 (Fla. 4th DCA 2008) (quoting Trask v. Moore , 24 Cal. 2d 365, 368, 149 P.2d 854, 856 (1944) ). While Blok suggests that these lines are appurtenances to the adjacent homes, they are not, as they would not "pass as incident to the principal thing." The lines are located in an easement and owned by BellSouth. They are not an appurtenance to the property of the homeowner.

      The vast majority of the fees and costs were for representation in defending the underlying personal injury lawsuit or pursuing a joint indemnity claim against Blok and thus are proper. There are a few entries for time spent for answering the amended complaint when BellSouth became a defendant in the litigation and preparing its own crossclaim against Blok. There might be some entries regarding individual discussions with BellSouth lawyers. It is up to Blok to show the trial court the individual hourly fee entries or cost items which it claims should be excluded. The trial court can thereafter determine whether those specific hours and costs were included in its original award and should be excluded as due solely to representation of BellSouth.

      Because the amount appears to be so small compared to the total award, the parties may be able to agree to any reduction and submit an agreed judgment on fees to the trial court.


author: Per Curiam.

text:
    HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee FOR LUMINENT MORTGAGE TRUST 2007-2, Appellant, v. Julio R. SANCHEZ a/k/a Julio Ramirez Sanchez and Gina Carvallo, Appellees.
    No. 4D17-1085
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Michael K. Winston, Dean A. Morande and Alana Zorrilla-Gaston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.
    Matthew Bavaro and Chase E. Jenkins of Loan Lawyers, LLC, Fort Lauderdale, for appellees.
    ON MOTION FOR CLARIFICATION
   Per Curiam.

We grant the motion for clarification, withdraw the previous opinion, and substitute the following.

This appeal involves successive foreclosure lawsuits filed by HSBC Bank against the Appellees (the "borrowers"). The trial court found that the Bank's complaint failed to state a cause of action because the default date alleged fell during the pendency of its prior foreclosure action. Because the Bank alleged a series of payment defaults which were successive causes of action, some accruing during the pendency of the first suit and some accruing after its dismissal, we reverse.

In this case, the first foreclosure suit was filed in 2009 and judgment was entered in favor of the borrowers on April 9, 2014 (with prejudice). The second foreclosure suit was filed in 2015, alleging that the borrowers were in default for failing to make the payment due under their note on May 1, 2011, and all subsequent payments. Following a non-jury trial, the court found in favor of the Bank on all issues, and would have entered judgment in favor of the Bank but for language found in Bartram v. U.S. Bank Nat'l Ass'n , 211 So.3d 1009 (Fla. 2016), which said:

[The lender] was not precluded by the statute of limitations from filing a subsequent foreclosure action based on payment defaults occurring subsequent to the dismissal of the first foreclosure action , as long as the alleged subsequent default occurred within five years of the subsequent foreclosure action.

Id. at 1012 (emphasis added). The trial court interpreted this language to mean that a second or subsequent foreclosure complaint failed to state a cause of action where it alleged a payment default occurring prior to the dismissal of the first foreclosure action.

The issue in Bartram was not whether the lender stated a cause of action for foreclosure. The issue was whether the lender retained its "ability to enforce its rights" under a note and mortgage that were the subject matter of a previously dismissed foreclosure action brought by the lender. Id. at 1015. In Bartram , the lender acknowledged "that it could not seek to foreclose the Mortgage based on Bartram's defaults prior to the first foreclosure action, but could seek foreclosure on defaults occurring subsequent to the dismissal of the first foreclosure action." Id. at 1015. It was in this procedural posture that the court found "each subsequent default accruing after the dismissal of an earlier foreclosure action creates a new cause of action." Id. at 1020. Bartram did not address whether a lender can recover unpaid interest, fees, and costs accrued during the pendency of an earlier foreclosure action.

We find that the Bank here stated a cause of action for foreclosure by alleging a continuing series of missed payments (separate and distinct defaults) occurring both while the first cause of action was pending and continuing after the first cause of action was dismissed, and where the initial default alleged in the subsequent suit occurred after the default upon which the initial foreclosure action was based. See PHH Mortgage Corp. v. Parish , 244 So.3d 338, 2018 WL 560538 (Fla. 2d DCA Jan. 26, 2018) (quoting Bartram , 211 So.3d at 1019 ); see also Desai v. Bank of New York Mellon Trust Co. , 240 So.3d 729, 2018 WL 1180539 (Fla. 4th DCA March 7, 2018) (finding the bank was not barred by either the statute of limitations or the doctrines of res judicata or collateral estoppel from recovering in a subsequent foreclosure action damages accrued while the initial foreclosure action was pending).

We reverse the order of dismissal, remand for entry of judgment in favor of the Bank and further proceedings consistent with this opinion.

Reversed and remanded for further proceedings .

Gerber, C.J., Gross and Kuntz, JJ., concur.