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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DARWIN K. KLINGER,
)
)
Appellant/
)
Cross-Appellee,
)
)
v.
)
Case No. 2D00-4988

)
STATE OF FLORIDA,
)
)
Appellee/
)
Cross-Appellant.
)
)
Opinion filed April 12, 2002.
Appeal from the Circuit Court for Polk
County; Randall G. McDonald, Judge.
Richard G. Bartmon of Bartmon &
Bartmon, P.A., Boca Raton, for
Appellant/Cross-Appellee.
Robert A. Butterworth, Attorney
General, Tal ahassee, and Ha T. Dao,
Assistant Attorney General, Tampa, for
Appellee/Cross Appellant.
STRINGER, Judge.
Darwin Klinger challenges his convictions for DUI manslaughter and
tampering with evidence. Although Klinger raises several issues on appeal, we find that
only one warrants discussion. We affirm Klinger's convictions for DUI manslaughter

and tampering with evidence and write to address his assertion that the victim's refusal
to accept a blood transfusion was an intervening cause of death. Our affirmance
renders the State's cross-appeal concerning jury instructions moot.
At Klinger's trial, Karen Branco testified that, on February 20, 1999, she
and her son, Thomas Branco, were driving on State Road 60 in Bartow, when the
transmission in Mr. Branco's vehicle malfunctioned. Mr. Branco got out to push the car.
Shortly thereafter, Klinger collided with the vehicle causing severe injuries to Mr.
Branco. Testimony revealed that Klinger's blood alcohol level at the time of the
accident was between .10 and .18.
Mr. Branco remained conscious and alert while being taken to the
hospital. Dr. Rhonda Fischel testified that Mr. Branco suffered life-threatening injuries,
and without treatment, his chances of survival were "very low." Mr. Branco informed Dr.
Fischel that he was a Jehovah's Witness and did not want a blood transfusion under
any circumstances. Dr. Fischel opined that Mr. Branco's chance of survival, had he
accepted a blood transfusion, was between eighty-five and ninety percent. Mr. Branco
did not receive a transfusion and died due to loss of blood.
In order to convict on a charge of DUI manslaughter, the State must show
that a defendant was under the influence or had an unlawful blood alcohol level while
operating a vehicle and, by reason of such operation, caused the death of another
human being. 316.193(3)(c)(3), Fla. Stat. (1999); see also State v. Hubbard, 751 So.
2d 552, 563 (Fla. 1999) ("[T]he fact that someone is intoxicated and drives a particular
vehicle which causes another person's death should be enough to satisfy the elements
of DUI manslaughter."). Klinger argues that he did not "cause" Mr. Branco's death
-2-

because Mr. Branco would not have died if he had accepted the recommended medical
treatment. However, Florida courts have consistently rejected this argument.
In Johnson v. State, 59 So. 894 (Fla. 1912), the supreme court adopted
the principle that:
A defendant cannot escape the penalties for an act which in
point of fact produces death, which death might possibly have
been averted by some possible mode of treatment. The true
doctrine is that, where the . . . [wound] is in itself dangerous to
life, mere erroneous treatment of it or of the wounded man
suffering from it will afford the defendant no protection against
the charge of unlawful homicide.
Id. at 895 (quoting Daughdrill v. State, 21 So. 378, 387 (Ala. 1897)).
Applying this principle in Lester v. State, 737 So. 2d 1149, 1150 (Fla. 2d
DCA 1999), this court considered the criminal liability of a defendant where the victim
failed to obtain proper medical treatment. In Lester, a juvenile, while driving a stolen
car and attempting to flee the police, collided with the victim's vehicle. The victim went
to the hospital, complaining of pain, but left before being treated and died sometime
early the next morning from internal injuries caused by the accident. Id. at 1151.
Lester argued that he was not criminally responsible because the victim's failure to
obtain medical treatment was an intervening cause of death. However, we held that the
victim's failure to obtain medical treatment was not an intervening cause that
exonerated Lester from criminal responsibility because "[i]t was reasonably foreseeable
that Lester's conduct would result in a collision and death." Id. at 1152.
Although not controlling, we note that the Supreme Court of Indiana has
considered the issue of criminal liability where the victim refuses to accept a blood
transfusion for religious reasons. See Ford v. State, 521 N.E.2d 1309 (Ind. 1988). In
Ford, the victim of a robbery died due to blood loss from a gunshot wound inflicted by
-3-

the defendant. The Indiana Supreme Court rejected Ford's claim that because the
victim, a Jehovah's Witness, refused a blood transfusion, his refusal should act as an
intervening cause absolving Ford from criminal liability. The Ford court held that "[o]ne
who inflicts an injury on another is deemed by the law to be guilty of homicide if the
injury contributes . . . immediately to the death of the victim. The fact that other causes
contribute to the death does not relieve the actor from responsibility." Id. at 1310.
Similarly, in the present case Klinger's actions caused life-threatening
injuries to Mr. Branco. The fact that Mr. Branco refused a blood transfusion which
might have saved his life does not absolve Klinger from criminal liability. Accordingly,
we affirm Klinger's convictions for DUI manslaughter and tampering with evidence.
Affirmed.
BLUE, C.J., and SALCINES, J., Concur.
-4-

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