State v. Cino

931 So. 2d 164, 2006 Fla. App. LEXIS 7246, 2006 WL 1289521
CourtDistrict Court of Appeal of Florida
DecidedMay 12, 2006
DocketNo. 5D05-4413
StatusPublished
Cited by6 cases

This text of 931 So. 2d 164 (State v. Cino) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cino, 931 So. 2d 164, 2006 Fla. App. LEXIS 7246, 2006 WL 1289521 (Fla. Ct. App. 2006).

Opinion

LAWSON, J.

The State of Florida seeks certiorari review of a circuit court decision rendered in its appellate capacity. The circuit decision affirmed a county court order suppressing post-Miranda1 statements made by respondent Christian Hunter Cino, (“Cino”), and dismissing an information charging Cino with driving under the influence, (“DUI”), causing damage or injury.2 We find that the circuit court’s decision departed from the essential requirements of the law in two respects, and grant the writ.

On December 1, 2002, Sergeant Phillip Buster of the Casselberry Police Department responded to the site of a reported traffic accident. During his traffic investigation, Sergeant Buster learned from both Cino and the driver of the other involved vehicle that Cino had been driving one of the two wrecked vehicles. He also observed that Cino had the “strong ... odor of alcohol impurities' upon his breath,” and “very slurred speech.”

Sergeant Buster reported his observations to Officer Scott Munn, who then initiated a DUI investigation. Before eliciting any statements from Cino, Officer Munn informed Cino that the traffic investigation was concluded; that he was now beginning [167]*167a criminal DUI investigation; and, that he would need to first review Cino’s rights with him. Officer Munn proceeded to read Cino his Miranda rights. Afterwards, Cino elected to waive those rights and answer Officer Munn’s questions. During the interview, Cino admitted to driving the vehicle, and admitted that he had just left a bar at which he had consumed four or five beers.

Cino moved to suppress these post-Miranda statements on the legal theory that the accident report privilege set forth in section 316.066(4), Florida Statutes (2002), prohibited Sergeant Buster from legally sharing any information derived during his traffic investigation with Officer Munn. The trial court accepted this argument, ruling: “I’m going to suppress everything, observations, statements, confessions, anything that was derived — everything that flowed from ... Sergeant Buster, in effect, illegally telling Officer Munn everything he knew as a result of his accident investigation.” The county judge then dismissed the information.

On appeal, the circuit court upheld the trial judge’s ruling, holding inter alia, that section 316.066(4) barred the State (including any investigating officer) from relying upon Sergeant Buster’s observation that Cino exhibited slurred speech and smelled of alcohol, or upon the other driver’s statements to Sergeant Buster placing Cino behind the wheel of a vehicle.

Contrary to the circuit court’s decision, section 316.066(4) only prohibits the State from using as evidence at trial either the crash report or statements made to law enforcement during a traffic investigation by persons involved in the crash. The statute in no way prohibits the State from using Sergeant Buster’s observations of Cino’s physical appearance, general demeanor, slurred speech or breath scent. Furthermore, even though Cino was required by law to cooperate in the traffic investigation, the State’s use of Sergeant Buster’s observations regarding Ciiio’s physical traits or demeanor did not violate Cino’s privilege against self-incrimination.3 See Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). As explained in Muniz, the privilege against self-incrimination only protects an accused from “being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Id. at 588, 110 S.Ct. 2638 (quoting Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). In Muniz, the Court held that the “physical inability to articulate words in a clear manner,” or “slurred speech,” is not itself testimonial in nature. Id. at 590-591, 110 S.Ct. 2638. Therefore, an observation of a defendant’s speech patterns does not implicate the defendant’s Fifth Amendment privilege, nor does an observation as to any other physical trait of the accident scene or person. Id.

The second mistake of law made by the circuit court was in holding that section 316.066(4) barred the State from using statements made to law enforcement during the traffic investigation by persons other than Cino in its prosecution of Cino. In 1991, the Legislature added the following language to section 316.066(4): “However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.” Chapter 91-255, § 14, Laws of Florida. This addition to the statute effectively nullified prior cases interpreting an older [168]*168version of the statute which allowed anyone to object to the state’s attempt to use at trial any person’s statements to an officer investigating a traffic accident. Under the newer version of the statute, a law enforcement officer is not barred by section 316.066(4) from testifying at a criminal trial regarding statements made to him during his traffic investigation by anyone other than the defendant on trial (because doing so would in no way violate the non-defendant declarant’s privilege against self-incrimination).4

The State also argues that the circuit court erred in holding that section 316.066(4) bars the State from using Cino’s compelled statements against him during its investigation, or at any pre-trial proceeding. This point merits additional discussion. The State is correct that the statute only expressly bars the State from using Cino’s compelled statements “at trial.” However, the Constitution prohibits the State from making any use of Cino’s compelled statements against him, either directly or derivatively. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The purpose of the section 316.066(4) accident report privilege is to ensure that the state does not violate an individual’s constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident. See Brackin v. Boles, 452 So.2d 540, 544 (Fla.1984). Consequently, our Supreme Court has held that the statute “clothe[s] with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2).” Id. Similarly, we believe it is obvious that the protection provided by section 316.006(4) must be read as co-extensive with the constitutional privilege against self-incrimination. In other words, when the driver, owner or occupant of a vehicle is compelled to make statements in order to comply with his or her statutory duty, the immunity provided by section 316.006(4) is equivalent to that required by the Fifth Amendment. See Tyne v. Time Warner Entm’t Co., 901 So.2d 802, 810 (Fla.2005) (noting that courts have “an obligation to give a statute a constitutional construction where such a construction is possible”).

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Bluebook (online)
931 So. 2d 164, 2006 Fla. App. LEXIS 7246, 2006 WL 1289521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cino-fladistctapp-2006.