Status of Florida’s DUI “No Refusal” Policy at Sobriety Checkpoints / Roadblocks
SB 1790 prohibited any state or local law enforcement agency from conducting a “no refusal” DUI checkpoint where a judge is present on site to issue a warrant for a blood alcohol test without the driver’s consent. On May 7, 2011, the Florida legislatures’ Senate Bill 1790 (SB 1790) died in the judiciary committee. The bill was introduced by Republican Florida State Senator Rhonda Storms from District 10 which covers the eastern half of Hillsborough County, as well as smaller portions of Pasco County and Polk County, Florida.
Although SB 1790 died in committee, on May 27, 2011, the Fifth District Court of Appeals in State v. Geiss, 70 So. 3d 642, 650 (Fla. Dist. Ct. App. 2011), reh’g denied (July 22, 2011), review granted, 70 So. 3d 587 (Fla. 2011), found that the plain language of Florida Statute Section 933.02 prevented blood from being drawn based upon probable cause that a suspect has committed misdemeanor DUI. The decision left open the use of warrants for forced blood draws with probable cause in a felony DUI case. The distinction can depend on the number of prior convictions (some third and most fourth and subsequent DUI’s can be filed as a felony in Florida). The Florida Supreme Court has accepted jurisdiction to decide the case.
Florida’s Current Laws on Blood Draws in DUI Cases
Florida Statute Section 316.1932 allows a law enforcement officer in Florida to request a blood test of a person who is suspected of operating a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances if that person appears for treatment in a hospital, clinic, or other medical facility and a breath or urine test is impractical.
If the suspect refuses to submit to the blood test then the arresting officer will initiate an immediate administrative suspension of the driver license for a period of 1 year for a first refusal, or 18 months if the driver had previously had their license suspended for refusing a chemical test after a DUI arrest.
In other words, the legislature already provides for serious consequences in a DUI refusal case in Florida. In fact, anyone who refuses to submit to a DUI chemical test after having previously refused can be charged with a first degree misdemeanor punishable by 364 days in jail and a thousand dollar fine. So law enforcement already has all the tools it needs without resorting to forced blood draws during a roadblock or checkpoint.
Blood Draws Using “Reasonable Force” Allowed Only in Felony DUI Cases Involving Death or Serious Bodily Injury
Florida Statute Section 316.1933, a law enforcement officer with probable cause to believe a suspect drove under the influence of alcoholic beverages, chemical substances, or controlled substances and has caused serious bodily injury or death to any human being even the driver, can cause a cause a blood test to be performed, with an authorized use of reasonable force even without consent from the driver. However, that provision is limited to cases involving probable cause of a felony DUI involving serious bodily injury or death to another human being.
Current Status of Florida’s Blood Draws in DUI Cases Shows the Legislature’s Intention to Not Allow Forced Blood Draws
The driver can “refuse” to submit to the chemical testing whether it involves breath, urine or blood. Although it is hard to imagine “forcing” a suspect to provide a breath or urine sample, it is not hard to imagine forcing a blood draw. The officers can forcefully hold the suspect while a needle is shoved in the suspect’s arm.
Clearly the legislature contemplated forced blood draws in felony cases involving probable cause of DUI with serious bodily injury or death. By omission the legislature made a choice that forced blood draws would not be allowed in any misdemeanor DUI case or even felony DUI cases because of two or more prior convictions.
MADD and law enforcement officials in Florida clearly wanted to get around the intention of the Florida legislature. Frustrated with the high rate of refusals to submit to a chemical test of the driver’s breath, blood or urine in routine DUI cases, MADD and law enforcement agencies throughout the country sought a way to prevent any driver from refusing chemical testing.
In fact, visit the National Highway Traffic and Safety Administration’s web page on the NHTSA No-Refusal Weekend Toolkit which includes pre-event and post-event press releases, talking points, sample “no refusal” search warrants, and blood withdrawal forms. In support of the DUI “no refusal” policy, NHTSA cites DUI studies and statistics showing that the average refusal rate among states has held relatively steady with about one in four suspects declining to submit to a test. In Florida, the percentage of suspects refusing breath testing is 40%, exceeded only by New Hampshire at 41%.
Although the statutory scheme enacted by the Florida legislature made it clear that DUI “no refusal” weekend roadblocks were not allowed, local law enforcement agencies were seduced by federal incentive grant money provided under Section 163 of the Transportation Equity Act for the 21st Century (TEA-21). Additionally, roadblocks or “sobriety checkpoints” are profitable endeavors for local law enforcement agencies who can seize cars from drivers without a valid driver’s license or with illegal controlled substances in the vehicle. Additionally, towing fees, storage fees, and fines and court costs for offenses other than DUI make the roadblocks profitable.
Threats of Forced Blood Draws Would Decrease the Number of Refusals to Take the Breath Test
If a driver was told that refusal to take the breath test would result in a forced blood draw the logic was that fewer driver’s would refuse the less painful and dangerous breath test. MADD further advocated combining the forced blood draws with the DUI checkpoint or roadblock. Judges would be on standby during the roadblock to sign warrants based on an affidavit prevent in person or via fax or other electronic means by the arresting officer. NHTSA’s sample search warrant form reads as follows:
STATE OF ______
[LIST LOCAL COUNTY/PARISH/CITY/ETC]
SAMPLE SEARCH WARRANT
TO: Any Peace Officer in the City, State of
Pursuant to the Affidavit for a Search Warrant executed by _______________________________, who has reason to believe that within the person of:
RACE/SEX _______________ DOB_____________DL#______________, there exists evidence of ethanol, an alcoholic beverage or a Controlled Dangerous Substance in the breath/blood of the above described person, which constitutes evidence tending to prove the commission of the offense of Operating a Vehicle While Intoxicated in violation of [List Statute here]. I am satisfied that there is probable cause to believe that the evidence so described is located in the breath/blood of the above described person and that legal grounds exist for the issuance of a search warrant; therefore,
IT IS ORDERED THAT:
1) the affiant shall immediately and personally serve a copy of this search warrant on the suspect;
2) THE SUSPECT, PURSUANT TO THIS SEARCH WARRANT, IS ORDERED BY THE COURT TO SUBMIT TO A BREATH TEST AT THE DIRECTION OF THE ARRESTING OFFICER to test for evidence of ethanol or an alcoholic beverage;
3) if the suspect refuses to submit to the breath test as ordered by the Court, affiant (or any other peace officer) is ordered to seize the above described person and obtain a sample of whole blood in an appropriate medical setting in strict accord with medically acceptable practices by a physician, physician assistant, registered nurse, emergency medical technician, chemist, nurse practitioner or other qualified technician, as provided by law;
4) the affiant shall preserve the original executed affidavit for the search warrant and the faxed return of the affidavit and search warrant signed by the judge.
This warrant may be executed any time of the day or night, including Sunday, at any place the person is found and is directed to any peace officer who may use such means and force as necessary to obtain the bodily samples as directed in the warrant.
Issued this _______ day of _________________________, 20___, at ____ o’clock a.m./p.m.
********* The suspect was given a copy of this search warrant/order on _____________________, 20__, at _____ o’clock a.m./p.m.
By:_______________________________ Peace Officer
Imagine the officer coercing the citizen into submitting to the breath test by telling him, “Look sir, you can refuse to take the breath test if you want, but see Betty over there? She’s holding that needle in her hand? If you refuse then I’ll get this prosecutor sitting here to fax a warrant application over to the judge. The judge will fax it back and then I’ll hold you down while Betty shoves that needle into your arm. It’s your choice.” And imagine combining that nightmare with a roadblock case in which the citizen’s vehicle is randomly selected for a DUI sobriety interrogation.
Florida’s DUI “no refusal” policy was explained in the bill analysis of SB 1790
According to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) a “no refusal” DUI checkpoints is defined a a traditional DUI checkpoint with a few extra players including;
- an Assistant State Attorney (ASA);
- a blood-draw technicians possibly being on-site with the officers, and
- an on-call judge who may or may not be on-site.
Once a driver is stopped at the checkpoint, the officer first must determine if probable cause exists that the driver is under the influence of drugs or alcohol to the extent his/her normal faculties are impaired. Such determinations are made by the officer on the basis of factors including but not limited to the odor of alcohol, slurred speech, blood-shot eyes, stumbling, and fumbling for his or her driver’s license. At a DUI checkpoint an officer must base the probable cause determination more heavily on these factors than he would at a routine traffic stop because usually the checkpoint officer would lack any observation of erratic driving.
Once probable cause is determined, the driver is asked to submit to a breath alcohol test. Under no circumstances would every driver stopped at a “no refusal” DUI checkpoint be asked to submit to a breath test without the requisite determination of probable cause. If a driver for whom probable cause has been established refuses the breath test, the officer will complete an application for a search warrant, which includes an affidavit of probable cause, which when approved by the on-site ASA is delivered to the on-call judge either by the officer or with an electronic file transfer. After review the on-call judge may issue a warrant. Only then could the driver’s blood be drawn for testing without consent which would include using force.
Let’s Hope the Florida Supreme Court Just Says No to the “No Refusal” DUI Policies in Florida
Let’s hope the Florida Supreme Court does the right thing in it’s review of the State v. Geiss decision. Blood draws without consent are only authorized when probable cause exist to believe that the driver is guilty of DUI with serious bodily injury or death. Having officers use needles and forced blood draws to coerce individuals into submitting to a breath test is a bad idea.
Combining that nightmare with roadblocks and checkpoints in which citizens are randomly selected for further sobriety interrogations is beyond scary. How do you think the Florida Supreme Court will decide the case?
Submit this form to request a free and confidential consultation with one of our attorneys.