DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Petitioner,

v.

TYLER KERSTING,

Respondent.

No. 4D18-291 

[May 16, 2018]

Petition for writ of certiorari to the Seventeenth Judicial Circuit, 

Broward County; Timothy L. Bailey, Judge; L.T. Case No. 16-002296 

CF10A.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, 

Assistant Attorney General, West Palm Beach, for petitioner.

Michael D. Leader of Leader & Leader, P.A., Fort Lauderdale, for 

respondent.

PER CURIAM.

The State of Florida seeks certiorari review of a pretrial order that 

compels the non-testifying disabled victim in a pending DUI criminal case 

to undergo a neurological examination to ascertain his conscious 

awareness of the legal proceeding. Upon receipt of the results, the trial 

court will rule on the defendant’s pending motion in limine, which seeks 

to exclude the victim from the courtroom during his trial. We grant the 

petition and quash the order compelling the exam. Smart v. Bock, 220 So. 

3d 1196, 1197 (Fla. 4th DCA 2017) (recognizing that certiorari review lies 

to review order compelling a mental health exam).

Article I, section 16(b) of the Florida Constitution provides that crime 

victims have the right to be present at all crucial stages of criminal 

proceedings “to the extent that these rights do not interfere with the 

constitutional rights of the accused.” The Florida Constitution’s language 

and the commentary currently state that the victim’s rights are 

subordinate to the rights of the accused to the extent they would interfere 

with the accused’s rights. 
2

The trial court ordered the examination in its effort to balance the 

disabled victim’s constitutional right to be present at trial with the 

defendant’s constitutional right to a fair trial. To that end, the 

neurologist’s role is to determine if the catastrophic injury that the victim 

suffered prevents him from understanding the judicial proceedings. The 

trial court indicated that the victim will be allowed to be present in the

courtroom if he is “aware.”

 

We grant the petition for two reasons. First, the exam infringes upon 

the victim’s right to remain inviolate from an invasive examination not 

authorized or required by law. See Fla. Const., art. I, § 23. (“Every natural 

person has the right to be let alone and free from governmental intrusion 

into the person’s private life except as otherwise provided therein.”); State 

v. Smith, 260 So. 2d 489, 491 (Fla. 1972) (holding that trial court could 

not compel a witness to be examined for visual acuity). As the Florida 

Supreme Court stated in Smith, “[n]o right is held more sacred, or is more 

carefully guarded, by the common law, than the right of an individual to 

the possession and control of his own person, free from all restraint or 

interference of others, unless by clear and unquestionable authority of 

law.” Smith, 260 So. 2d at 491 (citation omitted).

Second, the record does not reflect that this is a case where the exam 

targets evidentiary or impeachment issues. See generally State v. Rhone, 

566 So. 2d 1367 (Fla. 4th DCA 1990); State v. Kuntsman, 643 So. 2d 1172 

(Fla. 3d DCA 1994). We note that, even in such cases, Florida appellate 

courts have closely guarded the victim’s privacy interests. See State v. 

Farr, 558 So. 2d 437, 438 (Fla. 4th DCA 1990) (quashing order requiring 

second examination of minor sex crime victim in the absence of extreme 

or compelling circumstances); Dinkins v. State, 244 So. 2d 148, 150 (Fla. 

4th DCA 1971) (upholding denial of motion to compel examination of 

sexual battery victim because exam was not essential to prevent 

miscarriage of justice); State v. Diamond, 553 So. 2d 1185, 1194 (Fla. 1st 

DCA 1988) (quashing order for gynecological exam of child witness and 

citing Smith as a “firm warning” against the “spontaneous generation” of a 

criminal defense right to subject victims to physical examination).

 

We decline to consider the cases cited by the parties addressing civil 

suits wherein courts have considered excluding the plaintiff from trial. 

Those cases do not address the limited issue before this court: the 

propriety of the victim’s neurological exam. Therefore, in granting this 

petition, we make no finding regarding the pending motion to exclude the 

victim from the courtroom. 

 
3

To the extent the trial court seeks to balance the victim’s constitutional 

right to be present at trial with the defendant’s constitutional right to a 

fair trial, it will have to do so without subjecting the victim to the 

neurological examination.

Petition granted. Order quashed. 

GERBER, C.J., LEVINE and CONNER, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.