In most DUI cases in Florida, when the polcie officer makes observations indicating the driver is impaired by alcohol, the police officer will ask the driver to submit to a breathalyzer test which tests a person’s blood alcohol level after the driver blows into the breathalyzer device. In some circumstances, the breathalyzer test is not practical, and the police officer investigating a DUI can request the driver submit to a blood test to test the driver’s blood alcohol level. This normally occurs after the driver is involved in an accident and suffers injuries making the breath test impracticable. The blood draw for the blood alcohol test is performed at the hospital where the driver has been taken to treat the injuries he/she suffered in the accident.
However, just because a person is in what appears to be a serious accident does not automatically allow the police officer investigating the driver for DUI to take the driver’s blood and have it tested for alcohol content. In a recent DUI case south of Jacksonville, Florida, the defendant lost control of her vehicle and flipped it over on the highway. To the responding police officer, it appeared to be a serious accident where a driver would normally be injured. When the polcie officer arrived, the driver was being loaded into the ambulance to be taken to the closest hospital emergency room. The police officer followed the driver and the ambulance to the hospital and made contact with the driver. The police officer indicated that the driver smelled of alcohol, had slurred speech and exhibited other signs of impairment from alcohol. However, the driver made it clear that she was not injured, had refused medical treatment and did not want to go to the hospital in the first place. At the hospital, she did not receive any medical treatment.
According to the police officer, the breathalyzer test could not be done at the hospital so he asked the driver to submit to a blood test to test her blood alcohol level. The driver agreed and submitted to the blood test. The blood test came back with a blood alcohol level above 0.08, the legal limit.
The criminal defense lawyer filed a motion to exclude the evidence of the blood alcohol test because the police officer did not follow the implied consent laws as they relate to blood tests. Blood tests are permitted only when the breath test is not practical. The breathalyzer test is not practical when the driver has been seriously injured and has to be taken to the hospital for treatment. In this case, the driver was taken to the hospital, but she was not seriously injured, nor was she trated. The police officer failed to support his contention that the breathalyzer test was not practical. As a result, he did not follow the law by requesting the blood test, and the blood alcohol test results were thrown out.