Missouri vs. McNeely’s Impact in Florida – F.S. Section 316.1933 is Unconstitutional

In a recent trial court level decision, State vs. Liles, 21 Fla. L. Weekly Supp. 883a (FLWSUPP 2019LILE), a Circuit Court Judge in Florida found that Section 316.1933 is unconstitutional because of the holding in Missour v. McNeely, 133 S.Ct. 1552 (2013).

Since Section 316.1933 was enacted, law enforcement officers have used it to force warrantless blood draws without consent or exigent circumstances even before an arrest if the officer had probable cause that the driver was DUI and caused an accident with death or serious bodily injury of anyone (including the defendant).

The court also excluded the blood test in that case finding that the officer’s misplaced reliance on Section 316.1933 cannot form the basis for a good faith exception to the exclusionary rule.

The Court also found that a warrantless blood draw without consent or exigent circumstances violates state and federal constitutional protections.




Plaintiff,                                                                                   Case No. 48-2011-CF-13421-A-O.                                                                                                              April 29, 2014. Mike Murphy, Judge


– – – – LILES,



THIS CAUSE having come on to be heard on the DEFENDANT’S MOTION TO EXCLUDE RESULTS OF TESTING CONDUCTED ON BLOOD DRAWN FROM THE DEFENDANT and the Court being fully advised on the premises, it is hereby


Absent a warrant, blood can only be obtained by the Government from a person, including the Defendant, if there is an exception to the search warrant requirement. In the instant case the only possible exceptions would be exigency, consent and Fla. Stat. 316.1933.

With regard to exigency, the case of Missour v. McNeely, 133 S.Ct. 1552 (2013), makes it clear that Schmerber v. California, 86 S.Ct. 1826 (1966) did not authorize a warrantless searches of a person’s blood simply because a blood alcohol level declines over time. Instead, under Schmerber, each case is looked at on an individual basis to determine if an exigency requires the taking of the blood. In the instant case, the evidence failed to establish an exigency existed to take the Defendant’s blood without his consent.

With regard to consent, the record is clear the Defendant did not expressly consent. However, implied consent may be a recognized exception to the warrant requirement to obtain a defendant’s blood. See McNeely at 1566. Fla. Stat. 316.1932(1)(c), a part of implied consent, provides for when a driver has impliedly consented to a blood draw. However, the facts as testified to at the hearing failed to establish that this subsection applied and the State indicated that the State was not proceeding under this subsection.

Instead, the State indicated that the State was relying on Fla. Stat. 316.1933 to justify the warrantless search of the Defendant’s blood. However, Fla. Stat. 316.1933 is not part of the implied consent law. 2 Fla. Stats. 316.1932(1)(a)1a, 316.1932(1)(a)1b, 316.1932(1)(c), and 316.1932(1)(e) clearly set forth what is covered by Florida’s implied consent law.

While previous versions of Fla. Stat. 316.1933 were part of implied consent and in fact contained the word “consent,” the statute covering the time frame when the instant blood was withdrawn does not. Prior to July 1, 2002 Fla. Stat. 316.1933(1) required that a person “shall submit, upon the request of a law enforcement officer, to a test of the person’s blood . . .” if the officer had probable cause to believe that the defendant had driven a vehicle while under the influence of alcohol or drugs and caused the death or serious bodily injury of a human being.

However, Laws of Florida Chapter 2002-263 (the result of the passage of the C.S.C.S.H.B. 1057) altered the state of affairs and now no longer directs that a person shall submit to a blood test. The amended statute now directs the law enforcement officer to require a person to submit to a test by reasonable force if necessary. In amending the statute, the legislature appears to have misinterpreted Schmerber v. California, 384 U.S. 757 (1966). This finding is based upon the staff analysis for CSCSHB 1057 under the section titled “Constitutional Issues” which states:

The United States Supreme Court has held that requiring someone to submit to breath or blood testing in DUI cases does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures or the Fifth Amendment right against self-incrimination. See Schmerber v. California, 384 U.S. 757 (1966).

Intellectual honesty requires this Court to find that this modification of the law was the legislature’s adoption of the Schmerber exigency standard and removal of Fla. Stat. 316.1933 out of the implied consent law. Unfortunately for the State, as discussed above, the evidence at the hearing failed to establish that an exigency existed to authorize the blood withdraw. Without an established exigency,Schmerber did not authorize a warrantless blood withdrawal. See McNeely.

If the legislature’s amendment was not an attempt to adopt the Schmerber standard by amending Fla. Stat. 316.1933, the statute would be unconstitutional by failing to require the existence of an exigency before directing the officer to obtain blood. See McNeely.

The next issue is whether or not, under the circumstances, the officer was allowed to rely upon a statute that has not be declared invalid. In Montgomery v. State, 69 So.3d 1023 (Fla. 5th DCA2011), the Fifth DCA laid out the general good faith exception to the exclusionary rule. However, with all general rules there are recognized exceptions.

In Illinois v. Krull, 480 U.S. 340, 349-350, 355, 107 S. Ct. 1160, 1167, 94 L. Ed. 2d 364 (1987) the United States Supreme Court addressed whether the good faith exception could be applied to a clearly unconstitutional statute:

Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. . . . A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. . . . As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.

Pursuant to Munoz v. State, 629 So.2d 90, 98 (Fla. 1993) “the legislature cannot enact a statute that overrules a judicially established legal principle enforcing or protecting a federal or Florida constitutional right.”

In the instant case, the Florida Legislature’s 2002 amendment of Fla. Stat. 316.1933 directed law enforcement to conduct a warrantless nonconsensual non-exigent search of a non-arrested person’s blood. Such a statute, as written, clearly violates the Federal and State constitution as much as statute that directs a police officer to take a warrantless nonconsensual non exigent DNA or blood sample of any non-arrested person the officer has probable cause to believe committed a sexual battery.

Under Krull and Munoz, even assuming the facts of the instant case met Fla. Stat. 316.1933, unless the statute adopted the Schmerber standard, the statute is clearly unconstitutional without an exigency requirement and where the statute is no longer part of implied consent. By failing to include an exigency requirement in the statute the legislature wholly abandoned its responsibility to enact constitutional laws and under Krull the State cannot rely upon a good faith reliance on a statute in the instant case which purports to trump the Fourth Amendment to the United States Constitution.

In conclusion, the warrantless, nonconsensual, nonexigent blood draw of the Defendant violates the State and Federal Constitutions and therefore the Defendant’s Motion to Exclude is Granted.


1 Cf. Frost v. Railroad Commission, 271 US 583 (1926), cited with approval in Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586, 2596 (2013) (for invalidating regulation that required the petitioner to give up a constitutional right “as a condition precedent to the enjoyment of a privilege.”)

2 This fact seems to be ignored due to older case law interpreting the pre 2002 amended version of Fla. Stat. 316.1933.

3 Even if this Court were to find that the legislature was not attempting to adopt Schmerber, the amended Fla. Stat. 316.1933 clearly is no longer included in implied consent.

4 The Defense argues that the State failed to lay the predicate to allow the blood to be withdrawn under Fla. Stat. 316.1933; however, that determination is not is not necessary at this time. However, if this Opinion is reversed on appeal, this Court will be prepared to issue a separate Order on that issue.

1 comment

  1. DMV took my license after I failed the Humphrey/Eastman test. Has you firm handled such cases? Feel test is unfair and have request driving test twice without any results. Feel I can pass a road test.

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