The Problem with "No Refusal" DUI Checkpoints in Tampa, Hillsborough County, FL

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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.

“No Refusal” DUI Checkpoints Coming to Tampa Bay?

If the “no refusal” DUI checkpoint ever became a reality in the Tampa Bay area then you could expect the following:

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.

Although decreasing the number of DUI fatalities is a great goal, what freedoms are law-abiding citizens in Florida willing to give up? If the police can take our blood by force in a misdemeanor DUI case, when else should they be permitted to take our blood by force? Do we really someone employed by law enforcement to stick a needle into our arm to take blood by force?

The DUI Breath Test is Cheap – The DUI Blood Test is More Complicated for the Prosecution

To me, the more important question is why all the media hype? Law enforcement love the idea of threatening a forced blood draw much more than actually taking your blood. Why? Because the DUI breath test machine called the Intoxilyzer 8000 is quick and cheap.

Some estimate that the machine cost only a few dollars per blow when you divide the cost of the machine over the number of individuals who will use it throughout the years. In fact, each breath test machine called the Intoxilyzer 8000 was purchased by the State of Florida for just over $6,000.00 each from the manufacturer. That’s cheap.

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

Even more problematic for the prosecutor from a practical standpoint are Florida’s Speedy Trial rules. For a misdemeanor DUI the prosecutor only has 90 days from the date of the arrest in which to pick a jury. Even if the prosecutor is entitled to a recapture period, that only gives the prosecutor an additional 15 days in which to try the case.

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.”

Why are the police concerned about a DUI refusal? According to the National Highway Traffic Safety Board 40% of suspects in Florida who are asked to take the breath test will refuse. (Compare with 39% in Louisiana, 38% in Ohio, and 81% in New Hampshire).

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

The legislature in Florida and most other states already have signification administrative penalties for refusing the breath test. In Florida, a first refusal comes with an automatic administrative suspension for one year (with a 90 day period in which the driver is not able to drive to and from work). That administrative suspension can be contested during a formal review hearing with the DMV’s Bureau of Administrative Review, but if the suspension is upheld a significant penalty attaches to the refusal.

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

As law enforcement change their tactics the public’s perception of law enforcement also changes. Most people would be completely terrified of any employee of the Hillsborough County Sheriff’s Office sticking a needle in their arm. How do we trust that the needles are clean? How do we know that the person drawing the blood is qualified to stick a needle in someones arm? What recourse does the typical citizen have if the police injury them in the process?

Why do we trust the police to hold someone down during a forced blood draw?

At some point, we all have to make a choice about our resources and priorities. Will the voters of Florida support elected officials who allow such police actions in a misdemeanor case? Both conservative Republicans and liberal Democrats have been critical forced blood draws in misdemeanor DUI cases. One would expect Libertarians to be completely against allowing the state or federal government to stick a needle in a citizen’s body to draw blood because of the suspicion of misdemeanor DUI.

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 refusal’ better for DUI enforcement in Tampa Bay? – Recent news article on bringing the federal grant money for “No Refusal” DUI checkpoints to Tampa Bay, Florida after a DUI arrest by the Tampa Police Department or the Hillsborough County Sheriff’s Office.

No DUI “Refusal” Checkpoints – Hillsborough County Florida DUI Lawyers argue against the constitutionality of “no refusal” drunk driving roadblocks.

3 comments

Hardship License Florida says:

January 20, 2011 at 12:22 pm

DUI is the dangerous habit that every one should avoid
sam says:

February 16, 2012 at 7:24 pm

hummm interesting !!!
drawing my blood by force hummm how about a warrant to take off my kidney ?
LizardLips says:

February 28, 2012 at 7:38 pm

Somehow I harken back to the 4th Amendment and the protections therein.

1. Reasonable suspicion used for stopping me in the first place.

2. Probable cause to force me to take a breathalyzer test(or search your person or your vehicle). They’ll need to swear out an affidavit for a magistrate’s signature on a warrant for that.

3. Exigent circumstances? Rule 2 still applies, after the fact.

If stopped, ask only the officers names, badge numbers and ranks and nothing else. Use your cell phone to record audio and video. When the police persist, the only words to use are; “Am I being detained or am I free to go?” Don’t get into a pissing contest with them. Be polite yet firm.

Of course it helps considerably if you haven’t been drinking.