The Problem with “No Refusal” DUI Checkpoints in Tampa, Hillsborough County, FL
The news has been filled with stories recently about the new “No Refusal” DUI Checkpoints coming to Tampa Bay. Other counties in Florida have already experimented with forced blood draws after stopping someone for DUI during a checkpoint or roadblock. Could these types of checkpoints be coming to the Tampa Bay area?
Update: Since I wrote this blog post the Fifth District Court of Appeals has concluded that a blood draw warrant cannot be issued based upon probable cause that a suspect has committed a misdemeanor offense for DUI.The decision, State v. Geiss, 5D10-3292, 2011 WL 2097694 [Fla Dist Ct App May 27, 2011], reh’g denied (July 22, 2011), review granted, SC11-1512, 2011 WL 4597554 [Fla Sept. 21, 2011], draws a distinction between a person suspected of only a misdemeanor for a first or second DUI, and a person suspected of a third DUI within 10 years of a prior or a fourth DUI regardless of when the prior convictions occurred.As a practical matter, this decision effective puts the breaks on “no refusal” DUI checkpoints in Florida because very few such felony DUI cases occur during a typical roadblock.
- Law enforcement comes up with guidelines for a DUI checkpoint or roadblock on a particular weekend at a particular location.
- Guidelines are developed so that the officers in the field have as little discretion as possible in determining which vehicles to detain (for instance the guidelines could require that they stop only every third vehicle while allowing two to pass through);
- Officers set up the roadblock at the designated time and place;
- If you get stuck the roadblock, expect some delay even if you are not subjected to further detention.
- If the officers arrest anyone for DUI during the course of the roadblock that person would be requested to take the breath test;
- If the person refused, then a judge would be on site for the purpose of signing a warrant that authorized the officer to use “reasonable force” to draw blood;
- If anyone refused, the person would be told “Okay, you want to refuse? Fine, we will get Judge So-and-So to sign a warrant and then the “qualified person” will come over here to stick a needle in your arm. In case you didn’t hear about it on the news, this is a “No Refusal” DUI Weekend.”
- For the people that continue to refuse, the law enforcement officers would use “reasonable force” to hold them down while a qualified person sticks a needle in their arm and draws their blood;
- If the person resists even without violence they might also expect to be charged with an additional criminal charge of resisting an officer without violence (a misdemeanor punishable by 12 months in jail under Florida law).
- Theoretically, less people would refuse to take the breath test which would increase the chances of a DUI conviction for those individuals that blow over the legal limit (because those cases now have the breath test result as evidence).
- Theoretically, fewer people would take any chance driving after having a sip of alcohol (impaired or not) because of the fear that the state could stick a needle in their arm and draw their blood.
- Law abiding citizens live in fear while those individuals that break the law probably will not think twice about the consequences.
The DUI Breath Test is Cheap – The DUI Blood Test is More Complicated for the Prosecution
From the prosecutor’s perspective – taking a DUI breath test case to trial is much easier than taking a blood test case to trial. With the breath test no expert testimony is needed. The prosecutor just calls the arresting officer, the technician that administered the test, and the Hillsborough County employee that does the monthly inspection of the machine. Breath test cases are quick easy trials from the prosecutor’s perspective. Although many of those cases are reduced to reckless driving, at least the prosecutor has more leverage in cases in which someone blows over the legal limit.
With an aggressive defense, a DUI attorney can contest the admission of the breath test results prior to trial (get the judge to throw out the breath test) or argue at trial that the machine was not working properly and does not prove the charge of DUI beyond all reasonable doubt. Even with the problems with the breath test machines, prosecutors looking at a cost-benefit analysis still prefer the DUI breath test case to either a blood test case or a refusal case.
Speedy Trial Issues with a Blood or Urine Test
Often obtaining the blood or urine test results from the crime lab take several months. Securing the expert testimony needed to admit the tests at trial can take longer than the 90 day speed trial period. Perhaps the crime lab should be busy look at semen DNA evidence in sexual assault cases, analyzing fingerprint evidence for armed robbery cases, or doing ballistics work to analyze firearm evidence in murder cases. Dropping everything to show up for a misdemeanor DUI case to testify about a blood or urine test result within the 90 day speedy trial period means delaying those more serious felony cases as well.
With the breath test no speedy trial issue exists because everyone knows the “result” of the test by the time the test is completed on the day of the arrest. For all of these reasons, law enforcement would love to deter the public from refusing to take the breath test. Threatening to stab someone with a needle on the roadside or at the jail is a great way to encourage someone to blow into the machine.
Federal Funding to Deter Someone From Saying “I Will Not Submit to a Breath Test.”
Given the questions that continue about the accuracy and reliability of the breath test machine used in Florida, the Intoxilyzer 8000 – many expect that number to continue to rise. Instead of addressing the concerns about the breath test machine, federal grant money is available for local law enforcement agencies participating in “No Refusal” DUI Checkpoints across the nation. Yes, your federal tax dollars are hard at work.
Make No Mistake About It – Significant Consequences Are in Place for Refusing the Breath Test
Perhaps the police are concerned about so many DUI refusal cases because many more of those cases result in a “not guilty” at trial. Even before trial, prosecutors are often more willing to reduce DUI refusal cases substantially. The hype about the “forced blood draws” serves the purpose of convincing the public NOT to refuse a breath test.
Organizations such as MADD will argue that if we can convince the public that refusing the breath test is not an option then fewer people will refuse to take the breath test and thereby avoid a DUI conviction. Less people avoiding a conviction might mean less people willing to drink and drive. Less people willing to drink and drive might mean fewer DUI injuries or deaths. It is certainly a noble goal – but threatening people with taking their blood by sticking a needle in their arm for suspicion of a misdemeanor offense is too heavy price to pay.
Combining the Threat of a Forced Blood Draw with a DUI Checkpoint or Roadblock in Tampa Bay
Why do we trust the police to hold someone down during a forced blood draw?
What do you think?
Recent News Articles About “No Refusal” DUI Checkpoint Weekends
Drunk Driving No Refusal Weekend. Safety Measure or Invasion of Privacy? – Article published on Texas GOP Vote which is a collaboration of bloggers with a mission to restore, renew, and reunite the Texas GOP Vote.
No DUI “Refusal” Checkpoints – Hillsborough County Florida DUI Lawyers argue against the constitutionality of “no refusal” drunk driving roadblocks.
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