Can an Unconscious Driver Consent to a DUI BAC Test?

When a driver is stopped by police in Florida and suspected of DUI, the officer conducts a preliminary investigation and usually decides whether they think the person is under the influence quickly. This usually occurs within minutes of beginning their personal interaction with the driver, if not earlier based on the erratic driving of the vehicle.  


From the time the officer reaches the initial decision that the driver is under the influence, everything the officer does is intended to collect evidence that will support their conclusion and justify the driver’s arrest for DUI. Conducting field sobriety tests and testing the driver’s breath or blood are two of the most significant methods for collecting incriminating evidence.  


An experienced Florida DUI defense lawyer understands how to protect a charged with DUI from illegally collected evidence. The law in Florida provides the police with a range of options on how to obtain a driver’s breath or blood samples to test for and quantify the alcohol in the driver’s system. 


In Hillsborough County and Pinellas County, the Stechschulte Nell Law Firm has extensive experience defending drivers accused of DUI. Their extensive experience enables them to spot illegal police procedures, unlawful police searches, and violations of the driver’s constitutional rights during a DUI arrest. If you need help defending a DUI charge in Florida, contact Stechschulte Nell, Attorneys at Law. 



Driver’s Consent to Submit to BAC Testing in Florida 


The U.S. and Florida constitutions prohibit the police from conducting unreasonable searches or seizures.  


To protect people from unreasonable searches and seizures, the law requires that police first obtain a warrant supported by probable cause before searching or seizing a person or their effects.  


But the courts have carved out many exceptions to this general prohibition against warrantless searches and seizures. 


One exception to the warrant requirement involves situations where a suspect consents to a police search. To ensure that drivers in Florida consent to a blood test or breathalyzer, F.S. § 316.1932 provides that every driver “consents” to a chemical test to determine the level of alcohol or drugs in their blood system when they accept the privilege of obtaining a Florida driver’s license or operate a motor vehicle in Florida. 


By virtue of this statute, every Florida driver is presumed to have consented to a blood or breath test to detect alcohol if the police have “reasonable cause” to believe the driver is in actual physical control of a vehicle while under the influence of alcohol or drugs.  


This is why a first offense “refusal of a chemical test” (breathalyzer) can result in a severe civil penalty (one-year license suspension) if the police legally arrest you for suspicion of DUI and you do not submit to a breathalyzer. Second-offense chemical test refusals can result in criminal charges. 


Can an Unconscious Driver Consent to a DUI BAC Test? 


The answer to this question depends on the circumstances of each case. The reason is because the answer will change in different situations. The law says, “A person incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test.” F.S. § 316.1932 


If a driver is conscious when they are arrested for DUI, the police must notify them that they may refuse to submit to a breathalyzer.  


If they do refuse, they will be cited for refusing a chemical test and suffer civil penalties and license suspension. 

Police Taking an Unconscious Driver’s Blood for Chemical Test is a Search 

The courts have clearly stated that law enforcement’s ordering a blood sample to be taken from an unconscious driver to test for alcohol or drugs is a search.  


If the police have no search warrant, the blood testing is presumed unreasonable unless “exigent circumstances” make obtaining a warrant impracticable.  


Exigent circumstances must be determined by looking at the totality of the circumstances on a case-by-case basis. There is no automatic “exigence” merely because a DUI suspect is unconscious.  


In 2013, the United States Supreme Court held that the fact that alcohol dissipates in the bloodstream over time is not, by itself, sufficient exigence to justify a warrantless search of a DUI suspect’s blood. There must be a fact-specific analysis of each case to determine whether an officer could have obtained a warrant to conduct the search (have the blood sample collected) before proceeding without a warrant.

Missouri v. McNeely, 569 U.S. 141 (2013) 


In 2021, the Florida District Court of Appeals for the Fifth District vacated the conviction of a defendant charged with DUI manslaughter on the same grounds. In Dusan v. State, 323 So. 3d 239 (Fla. Dist. Ct. App. 2021), the driver was in a head-on collision with another vehicle in which the driver died. Eight police officers were on the scene when the defendant refused to consent to a blood draw for police to test for alcohol.  


The arresting officer drove the defendant to the hospital and ordered the blood draw without first getting a search warrant. The Florida court vacated the conviction because the officers could not explain why one of the other seven officers on the scene could not have attempted to get a search warrant for the defendant’s blood while she was being transported to the hospital.  


No officer contacted the department’s legal counsel, the state’s attorney, or anyone else to attempt to obtain a warrant. As a result, the court ruled there was no “exigent circumstance” urgent enough to justify a warrantless search. The court ordered a new trial in which the blood test results showing the defendant was under the influence would be inadmissible. 


Read More > Are Ignition Interlock Devices Required After a Florida DUI?  


Get Experienced DUI Breath and Blood Test Criminal Defense 


If you or someone you love has been charged with a DUI, don’t hesitate to reach out to our skilled DUI attorneys at Stechschulte Nell. We are ready to defend you. Call us today at 813-280-1244.  

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