PALM HARBOR — Ten months after dismissing a suspected drunken driver’s blood test on grounds the woman was too drunk to have volunteered to take it, a county judge agreed to a settlement that her blood-alcohol percent was much less.
As a result, Sheri Lutich’s fines are $532 less than if the higher blood-alcohol level had been ruled admissible. She also won’t be required to have a breath-testing device in her vehicle that she would have had to use before starting it, her attorney Kevin Hayslett said.
On Oct. 11, 2012, Pinellas County Sheriff’s Deputy Chester Johnson spotted Lutich slumped over in a 2011 Land Rover stopped at an intersection in Palm Harbor, court records say. The front of the vehicle was jutting out into busy U.S. 19.
Johnson got out of his car and shouted at the driver for about two minutes, slapping the window and waving his arms before he managed to rouse Lutich, then 42, the documents say. Johnson had to help the impaired Palm Harbor woman get out of the Land Rover, and paramedics who came to the scene recommended she be taken to a hospital, the documents say.
Before the ambulance left, Johnson asked Lutich voluntarily to provide a blood sample and said she agreed, signing a waiver and thrusting her wrists out, saying “OK.”
Her blood-alcohol level was 0.425 and 0.427, more than five times the legal threshold at which a Florida driver is presumed intoxicated. Lutich later was charged with driving under the influence of alcohol.
But Pinellas County Judge James Pierce, at a hearing June 26, told prosecutors the blood sample was not admissible in court because Lutich was in no state to volunteer to take the blood test.
“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,” Pierce said, according to a recording of the proceeding.
The hearing in June came after Hayslett filed a motion to have the blood-alcohol results thrown out of court.
Johnson testified at the hearing that he was concerned about the woman’s medical condition, so he tried to conduct 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 argued Johnson should have told Lutich she also could have submitted to a breath or urine test, something Hayslett says was required by law.
Johnson has said Lutich couldn’t take a breath test because her speech was slurred, she was sobbing intermittently and her thumb dexterity was such she wouldn’t have been able to hold the mask in place.
Johnson said when 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 sign her name on the line in the box, court documents state.
Pierce objected to that as well.
On April 2, Hayslett offered an agreement in court under which Lutich would plead no contest to drunken driving if it was stipulated her blood-alcohol percentage was 0.14. If a drunken driver’s blood-alcohol percent is under 0.15, the punishment is much less severe.
A prosecutor objected to the proposed plea because another blood sample — taken at the hospital — was also 0.4 or above. But that sample hadn’t been entered into the record, and because Pierce didn’t have any blood sample in front of him, he agreed to accept the stipulated blood-alcohol percent of 0.14 and the plea offer, Hayslett said.
Lutich’s fine was $986 rather than $1,518, and she won’t be required to have the alcohol-measuring device in her car.
Lutich also had taken proactive measures before the plea, Hayslett said, including wearing an ankle monitor tracking her alcohol intake around the clock for 30 days and completing programs at a DUI school and a substance abuse treatment facility.
“My client wanted it over,” Hayslett said.