In DUI cases in Florida, the police officer who suspects the driver of driving while intoxicated will normally request that the driver submit to a breath alcohol test, or breathalyzer, which is the common test to determine if a person is driving over the legal limit. Blood and urine tests also exist, but police typically request the breath test due to the fact that it is easier to administer. In Florida, when a person gets a driver’s license and accepts the privilege to drive, he/she agrees to submit to an alcohol test after a lawful arrest for DUI where the police officer had probable cause to make the DUI arrest. Normally, the driver can refuse the breath, blood or urine test- the police officer will not force the the driver to submit to the breathalyzer, blood or urine test. However, if the driver refuses to submit to the breath, blood or urine test after a lawful arrest for DUI, the person is subject to a longer driver’s license suspension and being charged with a misdemeanor crime for a subsequent DUI test refusal. The refusal can also be used against the driver in court during the DUI criminal case.
However, police and prosecutors in some counties in Florida are fighting back against people who refuse the breathalyzer or other alcohol test. They are having a judge available in certain situations, such as when police set up checkpoints or during times when police expect a lot of drunk drivers, who will quickly issue search warrants when a driver arrested for DUI refuses the breath test. In this situation, after the driver refuses the breathalyzer, the police officer will tell the judge why he/she thinks the driver has committed a DUI and request the judge to issue a search warrant to obtain the driver’s blood to be tested for alcohol content. In this situation, the police would not force the driver to submit to the breath alcohol test, but it would force the driver to submit to a blood alcohol test.
Ths method of getting a search warrant on the fly and forcibly taking one’s blood to test it for alcohol obviously raises several concerns. It is likely this will be challenged through the appellate courts in Florida and other states to determine if the strategy and the method are legal.