In Florida, most DUI cases result from a police officer claiming to observe a person violate a traffic law. The police officer conducts a traffic stop, claims to observe signs of impairment from alcohol or drugs and then initiates a DUI investigation. DUI investigations normally involve various questions about where the driver has been, what the driver has been doing and how much the driver has had to drink. The driver, of course, is free to refuse to answer any of these questions. They are designed to discover evidence that can be used against the driver in a DUI case. The police officer will also ask the driver to perform field sobriety tests. These are completely subjective coordination tests that can be difficult and should be refused if the police officer does not have a video camera to record this critical encounter. Finally, the police officer will normally ask the driver to submit to a breathalyzer test to measure the driver’s blood alcohol level. Unfortunately, these tests are only given after the DUI arrest. Therefore, a good number on the breath test will not change the fact of the DUI arrest. The police officer has a right to request a breath test if there is probable cause to believe the driver is impaired. While the driver can refuse the breathalyzer test, a refusal will likely result in a longer driver’s license suspension because of the Florida implied consent laws.
The police officer cannot ask for a blood test in normal DUI cases. There are certain rules that dictate when a police officer can seek a blood draw alcohol test in a DUI case. Failure to follow these rules will result in any blood alcohol test being thrown out of court.
A driver in a case just south of Jacksonville, Florida had wrecked his motorcycle, and the police officer arrived after the fact. The police officer claimed to observe the standard factors such as odor of alcohol and slurred speech. The police officer arrested the suspect for DUI and took him to the hospital due to a potential ankle injury. At the hospital, the police officer requested a blood sample to test for alcohol content. The police officer did not mention the possibility of a breathalyzer alternative. The suspect agreed to the blood draw. He was treated for an ankle sprain and released. He was then taken to the jail.
The criminal defense lawyer filed a motion to suppress the evidence of the blood alcohol test arguing that the police officer did not have a legal basis to request a blood test. A breathalyzer test should have been requested instead. There are a couple of situations where the police officer can forego a breath test and request a blood alcohol test. If a suspect is taken to the hospital and a breath or urine test is impractical, then a blood test is warranted. For instance, if the suspect is seriously injured and likely to be in the hospital for a while, a blood test at the hospital is warranted because the police would not be able to get the suspect to the jail to take the breathalyzer test in a reasonable period of time. That was not the case here as there was no evidence of a serious injury or that the suspect would be at the hospital for an extended period of time. A breath test being inconvenient is not the standard. It must be a situation where the breath test is not feasible given the circumstances.
Another circumstance where the blood test is permitted is when a person is involved in an accident that resulted in death or serious bodily injury to anyone. However, an ankle sprain does not qualify as a serious bodily injury allowing a blood test.
A DUI suspect can agree to a blood test rather than a breath test. And this suspect did agree. However, this is only permitted when the police officer follows the rules and informs the suspect about the breath test and that there would be no consequences if he declined the blood test. Because the police officer did not discuss the breathalyzer test and merely requested the blood test without a legal basis, the blood tests results were thrown out.