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), the courts made it clear that the officer must usually obtain a warrant before taking blood by force or without consent. Now officers are not allowed to take blood by force without a warrant unless "exigent circumstances" exist.
Nevertheless, officers 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 non-consensual blood draws. As a result, it is rare 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. A 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-consentual, non-exigent blood draw violates the state and 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 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.
An open question under Florida law was whether law enforcement officers could obtain a warrant that authorized an officer to designate a person to take the blood by using force if the DUI suspect refused to submit to a breath test or urine test.
A recent cases from Florida's Fifth District Court of Appeals, State v Geiss, 5D10-3292, 2011 WL 2097694 [Fla Dist Ct App May 27, 2011], reh'g denied (July 22, 2011), finds that warrants to take blood from a DUI suspect using force are valid if the warrant alleges that the DUI is a felony. Therefore, under Florida law, search warrants for blood are not allowed in a misdemeanor DUI case.
A felony DUI can result if the suspect has two prior DUIs with the second DUI being within 10 years, or if the suspect has three prior DUIs regardless of when the offenses occurred. The case also found a "good faith" exception that make exclusion of the blood test unnecessary since the judge signed a search warrant in a case in which the arresting officer alleged only that the case was a misdemeanor (even though it was later determined to be a felony charge because of the number of prior convictions).
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").
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 15, 2017.