Unconscious

Seizing Blood from Unconscious DUI Suspect

In Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), the United States Supreme Court found that “[w]hen police have probable cause to believe a person has committed a drunk driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.”

Nevertheless, the Court failed to create a per se exigency rule after noting that in an unusual case, the unconscious DUI suspect might show:

  • that blood would not have been drawn if police had not been seeking BAC information; and
  • that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

As a plurality opinion, Justice Thomas concurred in judgment only. Like in McNeely, Justice Thomas advocated creating a per se rule that the natural metabolization of alcohol in the blood creates an exigency once police have probable cause to believe the driver is DUI.

After Mitchell, the Florida Supreme Court in McGraw v. State, 289 So. 3d 836, 839 (Fla. 2019), held that a warrantless blood draw from an unconscious DUI suspect is authorized under the exigency exception to the Fourth Amendment if:

  • the defendant does not show that “blood would not have been drawn if the police had not been seeking BAC information; and
  • the police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

Read more about DUI blood tests in Florida.

Blood Seizures in Death or Serious Bodily Injury  DUI Investigations

Even though Section 316.1933(1)(a) authorizes a blood draw if law enforcement has probable cause to believe the DUI caused or contributed to death or serious bodily injury, the death or serious bodily injury is not necessarily an exigency. Additionally, implied consent is not recognized as an exception to the Fourth Amendment.

For this reason, if a DUI involves a death or serious bodily injury, the law enforcement officer still needs either:

  • exigency under the totality of the circumstances; or
  • actual consent when there is no warrant.

See State v. Liles, 191 So. 3d 484 (Fla. 5th DCA 2016); State v. Quintanilla, 276 So. 3d 941, 947 n.8 (Fla. 3d DCA 2019).

Implied Consent for the Unconscious DUI Suspect

When a person who is suspected of DUI is unconscious, Florida law deems that the person actually consented to the blood test under Florida’s implied consent statute.

For example, in McGraw v. State, 245 So. 3d 760, 762 (Fla. 4th DCA 2018), the court found that under the Fourth Amendment, a law enforcement officer may seize blood without a warrant from an unconscious person, who is incapable of giving consent, according to section 316.1932(1)(c), because per that statute, an unconscious defendant can be said to have “consented” to the blood draw.

Section 316.1932(1)(c), F.S. (2016) provides:

“Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to [a blood draw and testing].”

In McGraw v. State, 289 So. 3d 836 (Fla. 2019), the Florida Supreme Court failed to address the validity of section 316.1932(1)(c). Instead, it relied on the likelihood that the blood draw would be permissible under the exigent circumstance’s exception to the Fourth Amendment. Therefore, the Florida Supreme Court has not addressed the validity of Section 316.1932(1)(c), F.S., under the Fourth Amendment.

This article was last updated on Friday, August 16, 2024.