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Monday, Sep 22, 2014

Key blood sample tossed in Palm Harbor DUI case

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The 2011 Land Rover was stopped at the intersection past the white line, its front jutting out into busy U.S. 19 in Palm Harbor. The driver was slumped in her seat.

Motorists heading south had to swerve to avoid hitting the sport utility vehicle that afternoon in October, drawing the attention of a Pinellas County Sheriff’s deputy, who pulled over and got out of his squad car.

For about two minutes, Cpl. Chester Johnson shouted at the driver, slapped the window and waved his arms before he managed to rouse 42-year-old Sheri Lynn Lutich of Palm Harbor. She seemed so intoxicated, he felt impelled to help her out of the Land Rover, and paramedics arriving at the scene recommended she be taken to the hospital, according to court documents.

Before the ambulance left, Johnson asked Lutich whether she would voluntarily provide a blood sample, and he says she agreed, signing a waiver and thrusting her wrists out, saying “OK.”

Her blood-alcohol, it would turn out, was 0.425 and 0.427, more than five times the legal threshold at which a Florida driver is presumed intoxicated. Lutich was later charged with driving under the influence of alcohol.

But a judge this summer said her blood sample wasn’t admissible evidence and told prosecutors they couldn’t use it in court.

The reason: She was in no state to volunteer a blood sample that afternoon on Oct. 11.

“It appears to the court that her mental state at the time the consent was allegedly given was not one which was very conscious or alert of what was going on around her,” Pinellas County Judge James Pierce said following a June 26 hearing before issuing his ruling, according to a recording of the proceeding.

The case is still winding through the judicial system, with a trial scheduled for Dec. 18.

The hearing in June was held after Lutich’s attorney, Kevin Hayslett, filed a motion on March 5 to have the blood-alcohol results thrown out of court.

At the hearing, Johnson testified that he was concerned about the woman’s medical condition, so he tried conducting a DUI investigation while keeping in mind something else might be wrong with her.

“If she could walk, and did not appear in need of medical treatment I would have arrested her for DUI,” Johnson testified, according to the recording. “I did not want to arrest her because that was not in her best interest at the time. Nothing provides a better snapshot than a blood draw. She understood enough to thrust her wrists out and say ‘Yes, OK.’ ”

But Hayslett essentially argued that Johnson should have told Lutich she could also submit to a breath or urine test, something Hayslett says was required by law, although neither is typically performed on the side of the road in Pinellas County.

Johnson has said Lutich couldn’t take a breath test anyway, because her speech was slurred, she was sobbing intermittently, and her thumb dexterity was such she wouldn’t be able to hold the mask in place.

Hayslett also accused Johnson of coercing Lutich to submit to the blood draw rather than obtaining it from her voluntarily. And, he argued, Lutich needed to have been injured in an accident for Johnson to have the authority to get a blood draw.

When Johnson said he received permission to draw Lutich’s blood, he had her sign the back of a consent form, rather than the front of the form, where there is a box for a signature. Lutich wasn’t able to control a pen well enough to leave her signature on a line in the box on the front of the form, court documents state.

Pierce objected to that as well.

The only other witness who testified at the June 26 hearing was Bryan Borrelli, the SunStar paramedic with Johnson and Lutich at the time of the blood draw. Though Lutich appeared to be in an altered mental state, her mental acuity was such that she appeared capable of answering yes and no questions, Borrelli testified.

By and large, the rest of his testimony dovetailed with Johnson’s account, until one exchange between Hayslett and him.

“She wasn’t in a state of mind to have a conversation about what would be in her best interest” at that time, Hayslett said.

“In my estimation no,” Borrelli said.

sthompson@tampatrib.com

(727) 215-6504

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