Only a Few Ways in Which Florida Police can Test for Alcohol With Blood Draw

According to a recent ruling by the United States Supreme Court, a police officer must first obtain a search warrant before he or she can force you to give a blood sample in the course of a DUI investigation. In Missouri v. McNeely, a police officer stopped a man for suspected DUI. The driver refused to take a breath test and submit to a blood draw. Consequently, the officer took the handcuffed man straight to the lab where his blood was drawn without a search warrant.

The Issue in McNeely

Alcohol Test by Drawing BloodThe driver’s blood alcohol level far exceeded the legal limit, but that was not the real issue. The main issue was whether the police may legally extract a person’s blood without permission and without a search warrant to investigate a DUI case. The State of Missouri claimed that DUI cases were special because the body metabolizes alcohol quickly. The State argued that the liver of a suspected DUI motorist was destroying valuable evidence with every tick of the clock.

The Ruling in McNeely

The U.S. Supreme Court disagreed, finding that in routine DUI stops, there is no reason why law enforcement cannot get a search warrant when the driver refuses to consent to an invasive blood draw procedure. After all, the world has known for decades how the body processes alcohol. However, there may be emergencies that may excuse the police’s failure to get a search warrant, such as when the delay in getting the warrant would cause substantial and irreversible loss of evidence. But the fact that alcohol naturally dissipates in an individual’s body is not reason enough to conduct non-consensual and warrantless blood tests in every DUI case. Consequently, absent an “exigent circumstance,” the Court held that the taking of a person’s blood without permission and without a warrant violates the Fourth Amendment right to be free from unreasonable search and seizure.

Florida Law

Despite the McNeely decision, however, Florida law enforcement can still use three legally permissible ways to get a blood sample from a DUI suspect:

  1. Death or Serious Injury – The first is where the driver is in accident that involved fatal or serious injuries to other parties or serious injuries to the driver. Here, no search warrant is required if the driver refuses to submit to a blood test. The police can forcibly take blood from the driver to test it for alcohol content.

 

  1. Breath or Urine Test Impractical – Another way for the police to get a blood draw is to request it from the driver. Generally this happens when the driver is in the hospital for treatment for minor injuries after an accident. The police may say that a blood draw is necessary because a breathalyzer or urine test is impractical or impossible. In this situation, it is usually in the driver’s best interest to refuse the blood draw and force the authorities to get a warrant because the test results could be incriminating for the driver.

 

  1. Medical Records Subpoena – The third way is by subpoena. If the hospital takes the driver’s blood after an accident and tests it for medical purposes, the State can later subpoena the hospital to produce those blood test results to help prove that the driver was DUI at the time of the accident. The driver will get a notice in the mail (sometimes months after the accident) indicating the State’s intention to pursue the medical records subpoena.

Upon receiving this notice, the driver should contact an experienced DUI defense lawyer because he may be able to assert successful objections to the State’s request for the subpoena. One objection would be lack of probable cause for the subpoena because no field sobriety exercises were performed or no other evidence exists showing that the driver was impaired at the time of the accident. Another basis for objection is that the driver was impaired because of a medical condition, not illegal drugs or alcohol.

The Consequences of McNeely

The McNeely case adds a layer of constitutional protection for alleged DUI offenders. If law enforcement does not follow the laws and correct procedures, an experienced DUI defense lawyer can help get the DUI charge significantly reduced or dismissed. But it is important to note that it is still not that particularly difficult for law enforcement to obtain a blood-search warrant for purposes of investigating a DUI case. Therefore, if you have been in a less serious accident and you were asked for a blood draw or you think you might be accused of DUI in the future, you should consult with a skilled DUI defense attorney to protect your rights.

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