Forced Blood Draw
Florida Statute Section 316.1933(1)(a) mandates that a police officer “shall” require a driver to submit to a blood test, by reasonable force if necessary, if the officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages has caused the death or serious bodily injury of a human being.
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Likewise, Florida Statute Section 327.353 allows for a blood test to determine intoxication or impairment in certain boating under the influence (BUI) cases involving serious bodily injury or death, including the right of law enforcement to use reasonable force to take the blood if the driver of a vessel refuses to consent to the blood draw.
After the U.S. Supreme Court’s decision in Missouri v. McNeely, 569 US 141 (2013), made it clear that search warrants are required before taking blood, unless one of the other narrow exceptions to the warrant requirement applies. One exception would include the officer obtaining free and voluntary consent. Without free and voluntary consent, a forced blood draw is only allowed when “exigent circumstances” exist.
Nevertheless, officers in Florida are still entering emergency rooms and demanding that a nurse draw a suspect’s blood. The policies of the hospital recognize the requirement that officers have a warrant before a nurse should be allowed to participate in a blood draw. The hospitals have no way to determine whether the officer really has exigent circumstances to avoid the warrant requirement or not.
As hospitals start to put in place common-sense procedures to limit warrantless blood draws, the nurses in hospitals are put in a very difficult position. Nurses and paramedics in Florida have been arrested for refusing to participate in a forced or nonconsensual blood draws. As a result, it is sometimes difficult for a nurse or paramedic to refuse an officer’s demand to take blood from a patient, even by force. As a result, the rights of hospital patients in Florida are routinely being violated in very serious ways.
The blood draw is considered a “forced blood draw” when a patient refuses to give “free and voluntary” consent. Additionally, the blood draw is without consent when the patient is unconscious or not otherwise capable of making an informed decision.
Impact of Missouri v. McNeely on Florida’s Forced Blood Draws
After the recent Supreme Court decision in Missouri v. McNeely, 569 US 141 (2013), 133 S.Ct. 1552 (2013) [24 Fla. L. Weekly Fed. S150a], forced blood draws are not allowed unless exigent circumstances can be shown. The decision in Missouri v. McNeely has prompted a nationwide re-examination of implied consent laws and reconsideration of statutes making refusal a crime.
This case also gave hospitals some authority to put procedures in place to limit when a nurse or paramedic should be forced to participate in a forced blood draw that appears to be illegal under the circumstances. Nevertheless, officers in many states, including Florida and Utah, have been slow to adopt procedures to secure a search warrant to authorize a forced blood draw.
Is Florida Statute Section 316.1933 Still Constitutional?
Several decisions in Florida have addressed the constitutionality of a forced and warrantless blood draw in Florida after the Missouri v. McNeely decision. For instance, in Florida v. Bokilo, the County Court for the 8th Judicial Circuit in and for Brevard County, 23 Fla. L. Weekly Supp. 289a (May 11, 2015) granted the defendant’s motion to suppress the blood test results taken without voluntary consent when the blood was not taken for medical purposes and no warrant was obtained.
In that case, the defendant was the only person involved in the single-car rollover crash and the defendant did not suffer any type of serious bodily injury that would trigger the forcible blood draw provisions in Florida Statute 316.1933(1)(a).
The court reasoned that in:
“[I]n Missouri v. McNeely, 133 S.Ct. 1552 (2013) [24 Fla. L. Weekly Fed. S150a], the Court declined to extend Schmerber to create a per se rule allowing warrantless blood extractions in all DUI cases regardless of circumstances.
In affirming the trial court’s suppression of the blood test, the Supreme Court analyzed the particular facts presented in McNeely and held that the warrantless and involuntary extraction of blood was an unreasonable search because no emergency existed that would allow for an exception to the general warrant requirement. Although Schmerber and Mcneely may allow for the involuntary warrantless extraction of blood from DUI suspects under
Although Schmerber and McNeely may allow for the involuntary warrantless extraction of blood from DUI suspects under federal constitutional law in some circumstances, Florida has extended greater legal protections to their citizens and imposed higher standards for law enforcement who wish to extract blood from DUI suspects. State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D717b].
These enhanced protections and standards are codified in Florida Law under the Implied Consent Statute, Florida Statute 316.1932, and Florida Statute 316.1933, relating to the involuntary testing of blood in DUI cases involving death or serious bodily injury.”
In State v. Lilies, 21 Fla. L. Weekly Supp. 883a, the Circuit Court for the 9th Judicial Circuit in and for Orange County (April 29, 2014) found that the warrantless, non-consensual, non-exigent blood draw violates the state and the federal constitution because Section 316.1933, which directs law enforcement officers to require a person to submit to a blood test by reasonable force if necessary without requiring the existence of exigency is unconstitutional and cannot form the basis for a good-faith exception to the exclusionary rule. As a result, the court granted the defendant’s motion to exclude the blood test results.
Forced Blood Draw in Car Crash Cases Involving Serious Bodily Injury
Florida Statute Section 316.1933(1)(a) provides law enforcement officers with the right to use “reasonable force” to take blood by force as part of a DUI investigation for impairment or intoxication in cases involving serious bodily injury or death.
As provided in Florida Statute 316.1933(1)(a), if an officer has probable cause to believe that a driver was under the influence of alcohol or a controlled substance while causing a car crash that resulted in death or serious bodily injury then the law enforcement officer “shall require” the driver to submit to a blood test by using “reasonable force if necessary….” The blood test must also be performed in a “reasonable manner,” although the blood testing need not be incident to a lawful arrest.
Only a registered nurse, certified paramedic, physician, or other medical personnel authorized by a hospital to draw blood (or a duly licensed clinical laboratory director or technician) acting at the request of a law enforcement officer may draw blood under the statute. However, if the law enforcement officer fails to obtain the blood sample as provided by this statute, then the prosecutor may still attempt to admit blood taken by the hospital for medical purposes (also called “hospital blood” or “medical blood”).
Forced Blood Draws at Florida’s DUI Roadblock or Sobriety Checkpoints
Although Florida Statute Section 316.1933(1)(a) provides for blood draws taken by force when probable cause exist that the driver caused a crash involving serious bodily injury or death, law enforcement officers have also threatened forced blood draws in routine DUI cases that do not involve an accident, including roadblock or checkpoint cases.
Forced Blood Draws for in a Felony DUI Case
An officer can seek a search warrant for a forced blood draw in a felony DUI case, but not in a misdemeanor DUI case. In State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011), the Fifth District Court of Appeal held, in pertinent part, that the statute governing search warrants, s. 933.02, F.S., precludes LEOs from securing a blood draw warrant for a misdemeanor DUI. Id. at 650.
Section 933.02(2)(a), F.S., establishes the grounds for issuing a search warrant when “any property” has been “used as a means to commit any crime.” Id. Subsection (3) of Section 933.02 authorizes the State to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.” Id.
The Geiss court noted that “blood is not ‘used as a means to commit’ driving under the influence. Instead, blood is seized for its evidentiary value.” Id. Applying the “good faith exception” to the warrant requirement, however, the Geiss court concluded under the facts of the case that the blood test results should not have been suppressed. Id. 651.
When is a Florida DUI Charged as a Felony?
In Florida, most DUI cases charged under 316.193, F.S., are classified as a misdemeanor. A DUI can be charged as a felony when:
- the third DUI occurred within 10 years of in prior DUI conviction;
- the fourth or subsequent DUI occurred in the driver’s lifetime;
- another person was seriously injured as a result of DUI; or
- someone was fatally injured or died in the DUI crash.
So in these cases types of felony DUI cases, the investigating officer could seek a search warrant for a forced blood draw if the driver refuses to submit.
Finding a Lawyer for a Forced Blood Draw DUI in Florida
At the Sammis Law Firm, we help men and women charged with drunk driving, including those cases involving a forced draw of blood for testing in a DUI or BUI case. Call us to discuss your case and possible defenses today. Any blood test taken without the driver’s consent can be challenged in court.
Call a DUI Attorney in Tampa, FL, at the Sammis Law Firm to discuss your DUI case if it involves a blood test taken in the Tampa Bay area, including Hillsborough County, FL.
This article was last updated on Friday, December 28, 2018.