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Motion to Exclude Blood Analysis Results

COMES NOW the Defendant, by and through the undersigned counsel, pursuant to Fla. R. Crim. P. 3.190(a), and moves this Honorable Court for entry of an Order instructing the prosecutor and any and all state witnesses to refrain from making mention by statement or interrogation, directly or indirectly, in any manner whatsoever, concerning any of the matters set forth herein.
As grounds therefore, the Defendant will demonstrate that the matters set forth below would be inadmissible for any purpose on proper and timely objection and that they have no bearing on the issues in this cause. Permitting comments, interrogation of witnesses, or offers of evidence concerning these matters would prejudice the jury, and sustaining objections to such questions, comments, or offers could not cure such prejudice, but would rather reinforce the impact of such prejudicial matters on the jurors.

A. CHARGE
The Defendant is charged with one count of Driving Under the Influence of alcoholic beverages with damage and with one count of Driving Under the Influence of alcoholic beverages.

B. EVIDENCE TO BE EXCLUDED
1. Florida Department of Law Enforcement Laboratory Report, dated May 18, which indicates the presence of (1) Delta-9-tetrahydrocannabinol (THC); (2) 11-Nor-9-carboxy-delta-9-tetrahydrocannabinol; and (3) 11 OH-delta-9-tetrahydrocannabinol 6.9 + or -2.1 ng/ML in the Defendant’s blood.
2. Any in-court statements from any and all witnesses concerning the results of the blood analysis which indicates the results listed above;
3. Any out-of-court statements from any and all witnesses concerning the results of the blood analysis which indicates the results listed above; and
4. Any argument on behalf of the State commenting on the results of the blood analysis which indicates the results listed above.

C. BRIEF STATEMENTS OF FACTS
1. On or about April 18, the Defendant was involved in an automobile accident and taken to the hospital.
2. The Defendant’s blood was drawn at the hospital.
3. The Defendant’s blood sample was later analyzed by the Department of Law Enforcement (DLE) for the presence of alcohol and drugs.
4. DLE report dated May 3, alleges that the Defendant had alcohol in his system.
5. DLE report dated May 18, alleges that the Defendant had THC in his system, as listed in Part B.1 above.
6. No additional substances were detected during the blood analysis.

MEMORANDUM OF LAW IN SUPPORT OF THE MOTION
For evidence to be admissible, it must be relevant under the confines of §§ 90.401 and 90.402, Fla. Stat. Relevant evidence is inadmissible under § 90.403, Fla. Stat., when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. Here, evidence of THC in the defendant’s drug is irrelevant to the crimes charged.

Furthermore, revealing to a jury the presence of marijuana in someone’s internal system is more prejudicial than probative. Estrich v. State, 995 So. 2d 613, 616 (Fla. 4th DCA).

In Sabree v. State, 978 So. 2d 840 (Fla. 4th DCA) the defendant’s blood alcohol level was 0.11% and 0.09% two hours after a crash and there was cocaine in his blood. The defendant was charged with DUI manslaughter and DUI causing great bodily injury. At the trial, the Court gave a jury instruction allowing for a conviction based on “a blood alcohol level of .08 or higher and/or a controlled substance to wit: cocaine.” Id. at 841. The defendant was convicted and he appealed. The Fourth District Court of Appeal stated that in order to be found guilty of driving under the influence pursuant to § 316.193(1)(a)-(c), Fla. Stat., a person must be either:

(a) “affected to the extent that [his] normal faculties are impaired” by alcohol or a controlled substance,

(b) have a “blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood,” or

(c) have a “breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.”

Id.

The court stated that simply having cocaine in one’s system is legally insufficient to convict because the State is required to prove beyond a reasonable doubt that the individual was “under the influence” of the controlled substance at the time he or she was operating or in physical control of a motor vehicle. Id. Since merely having a controlled substance in one’s system does not establish impairment under Section 316.193(1)(a)-(c), Florida Statutes, the Fourth District Court of Appeals found that the trial court erred in presenting such an instruction, so it reversed and remanded for a new trial.
In State v. McClain, 525 So. 2d 420, 421 (Fla. 1988), the defendant was charged with vehicular manslaughter while intoxicated. An analysis of McClain’s blood taken after the accident demonstrated a blood alcohol level of .14. Id. At the hearing on McClain’s motion to exclude all reference to the presence of the controlled substance, he introduced the deposition of a chemist who said that the amount of controlled substance was extremely small and was unable to state whether or not the presence of the controlled substance could have affected the manner of McClain’s driving. Id. The trial court granted the motion on the premise that the prejudicial impact of such information substantially outweighed its relevance. Id. The district court of appeal affirmed, holding that the trial court did not abuse its discretion by suppressing all evidence concerning the cocaine in McClain’s blood. Id. at 423. After applying the tenant of Section 90.403, Florida Statutes to the facts at hand, the Florida Supreme Court found it clear that the probative value of the evidence of the controlled substance in McClain’s blood was minimal. On the other side of the scales, McClain could have been seriously prejudiced in the eyes of the jury if it became known that he had ingested even a trace amount of the controlled substance. Therefore, the Court could not say that the trial court abused its discretion in refusing to admit the evidence of the controlled substance in McClain’s blood and affirmed the District Court’s ruling. Id.
Here, similar to Estrich, the State will be unable to establish anything more than the mere presence of the controlled substance in the Defendant’s blood, and cannot establish the Defendant was under the influence of those substances at the time the sample was taken. Further, similar to Sabree, the State will only be able to establish at best that marijuana was present in the his blood, which cannot establish impairment. In fact, when undersigned counsel took the sworn testimony of H, the DLE analyst who performed the urinalysis at issue in this case, she specifically stated that she could not testify that the Defendant was impaired by the controlled substance at the time he was driving. She also testified that marijuana could remain in a person’s blood system between 6-8 hours, and up to 12 hours, if the person was a chronic user, yet the effects of marijuana would only typically last 2 hours, or in some cases for 3-5 hours.
Therefore, similar to McClain, the probative value of the evidence of marijuana is minimal at best, and on the other side of the scale, the Defendant will certainly be prejudiced if such evidence is presented to the jury concerning the blood analysis results for marijuana (THC). Therefore, as in Sabree and McClain, such evidence must be excluded from trial, pursuant to § 90.403, Fla. Stat.
WHEREFORE, the Defendant prays this Court will grant the Defendant’s Motion in Limine to exclude the blood analysis results which allegedly show the presence of marijuana (THC) in the Defendant’s blood.