Is a Warrant Required for a Forced Blood Test in a DUI Fatality or Serious Bodily Injury Case in Florida?

For DUI cases involving death or serious bodily injury with a forced blood draw, a warrant is required. Without a warrant, the criminal defense attorney can file a motion to suppress the blood and blood test results. The only exception to the warrant requirement that might apply involves a showing of exigent circumstances.

For cases involving a forced blood draw, the criminal defense attorney in Florida will often file a motion to suppress the blood evidence in the case if the blood sample was taken during a forced and warrant-less blood draw, before any arrest, without either consent or exigent circumstances.

The basis for the motion to suppress is that the forced blood draw violated the Fourth Amendment of the U.S. Constitution, Article I, Section 12 of the Florida Constitution, and the decision of the Supreme Court of the United States in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

a. The Procedural Aspects of the Warrant Requirement in Florida

The warrant requirement of the Fourth Amendment has procedural and substantive aspects. Absent prior judicial authorization for searches and seizures, law enforcement officers must be able to justify their conduct after the fact, in order to render its fruits admissible at trial, over objection.

When an officer who orders the extraction of blood does not act pursuant to judicial warrant, the prosecution has the burden to show at the suppression hearing that the challenged evidence had been obtained lawfully.

All an accused need do is make an “initial showing,” State v. Lyons, 293 So.2d 391, 393 (Fla.App.2nd 1974) of standing to challenge the legality of a search, and the “ultimate burden of proof as to the validity of a warrant-less search is on the State.” Mann v. State, 292 So.2d 432, 433 (Fla.App.2nd 1974).

When the prosecution seeks to introduce evidence extracted from the body of the accused, in order to prove its case, the accused necessarily has standing to raise the question of the legality of the extraction. Schmerber v. California, supra; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); State v. Mitchell, 245 So.2d 618 (Fla.1971); Wilson v. State, 225 So.2d 321 (Fla.1969).

b. The Substantive Aspects of the Warrant Requirement in Florida

Aside from the procedural consequences of a search without warrant, there is a substantive warrant requirement which stands as an absolute bar to the use of evidence taken in certain warrantless searches.

Warrantless searches are presumptively unreasonable unless they fall within a recognized exception to the warrant requirement. See e.g., Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013).

The warrant requirement ensures that “inferences to support the search ‘[are] drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ ” Schmerber v. California, 384 U.S. 757, 770 (1966) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).

Warrants are generally necessary for searches of the human body and the extraction of blood using a needle from the subject’s vein. Id. at 770.

The exceptions to the requirement, that searches of persons and dwellings be judicially authorized beforehand, fall under four general headings:

  1. stop and frisk searches;
  2. consensual searches;
  3. searches incident to a lawful arrest; and
  4. searches where probable cause to search is coupled with exigent circumstances.

Exceptions to the warrant requirement are not strengthened because this search involves an intrusion into an individual’s body, instead of merely into his home.

Warrantless searches are disfavored and, with limited exceptions “per se unreasonable.” Mincey v. Arizona, 437 U.S. 385, 390 (1978). See also Groh v. Ramirez, 540 U.S. 551, 559 (2004).

“[T]he police bear a heavy burden… when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin, 466 U.S. 740, 749-750 (1984); Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006).

Exceptions to the warrant requirement are “few in number and carefully delineated.” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 318 (1972). See also Kyllo v. United States, 533 U.S. 27, 31 (2001).

In many cases involving a forced blood draw without a warrant, the state has the burden to prove that an exception to the warrant requirement applies. In most of these cases, the only possible exception is exigent circumstances. In the next article we will explore why exigent circumstances should be rare in felony DUI cases including those involving death or serious bodily injury.

The attorneys at the Sammis Law Firm in Tampa, FL, are experienced in fighting DUI case throughout Hillsborough County including cases that involve a warrantless, non-consensual, pre-arrest blood test. Call to speak to an attorney about the facts of your case.


  1. i was forced at the time of my dui manslaugher in 2002 to give my blood or suffer a beet down and made to give it up..yes i had a couple beers but i wasnt drunk..i simply was tired and fell asleap..behind the wheel unfortunionly..but at the same time they waited for a while before they took my blood.i was in jacksonville fl. when this happened and i had a court appointed attorney at that time..i feel like i got screwed all the way around…i havent had a drink of alcohol since my release from incarceration in 2012 december 24..i live back home in new castle de. since my release and feel i deserve another chance..i dont drink nor do i do drugs…do i have a chance of getting at least a work permit if nothing else?

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