Can the Police in Florida Get Blood to Test for Alcohol in a DUI Case Where the Driver is Unconscious?

In Florida, most DUI cases involve some alleged traffic violation followed by a DUI investigation and an arrest.  If the police officer thinks the driver is impaired from drugs or alcohol, and usually the officer makes that decision early and quickly, that officer is going to make the arrest. Everything else he does is designed to gather evidence to support the decision he has already made. Some people think the police officer will offer a breathalyzer test before an arrest to determine if an arrest for DUI is, in fact, appropriate. But that is not how it works. Essentially, there is a traffic stop, the police officer decides the driver is DUI, collects evidence such as field sobriety test results, makes the arrest, takes the driver to jail, books the driver into the jail and only then requests the breathalyzer test. So, the breathalyzer test is not something a driver can do to avoid an arrest. The arrest is a done deal at that point.  It is just another tool the police use to try to bolster their DUI case.

Most DUI cases involve a request for a breathalyzer test at the jail. However, there are situations where a breathalyzer test is not feasible, for instance, if the defendant was injured in an accident and had to be taken to the hospital or is otherwise unable to provide a breath sample. In that situation, the police might have the option of getting the driver’s blood to test for alcohol content. However, there are legal limitations to getting blood in DUI cases, and the police cannot always do it just because a breath test would be inconvenient.

In a case south of Jacksonville, Florida, a driver was injured in a single vehicle accident. A police officer responded and smelled alcohol coming from the vehicle. The driver was unconscious and taken to the hospital. The driver was not able to provide a blood sample so the police officer asked medical personnel to obtain a blood sample to be tested for alcohol content. The police officer did not seek a search warrant before getting the blood sample. After the blood tested well over the legal limit in Florida, the driver was arrested for DUI with injury.

The criminal defense lawyer filed a motion to suppress the blood test results arguing that the blood was obtained illegally. The police officer was required to obtain consent or a search warrant, and he obtained neither. The state argued the implied consent law, which basically says that when a person agrees to accept driving privileges in Florida, he/she consents to provide such evidence when the state is conducting a valid DUI investigation. The state argued that an unconscious driver suspected of DUI has not withdrawn that implied consent so the police officer can obtain his blood if a breath test is not feasible.

The Florida Supreme Court noted that the Fourth Amendment protects people from unreasonable searches and seizures, and a blood test is a search under the Constitution. However, the state can conduct that search without a warrant if there is exigent circumstances in a DUI case, meaning if the state is forced to take the time to get a search warrant for the blood, they would lose critical evidence. As a result, the implied consent does seem to allow the state to get blood from an unconscious driver where a breath test is not feasible and the driver cannot give affirmative consent. However, if the state does not get a search warrant, the driver can still attack the blood draw if the state cannot establish there were exigent circumstances to avoid the search warrant requirement. Normally, exigent circumstances include the fact that blood alcohol content dissipates over time and other immediate health, safety or law enforcement factors that make it problematic to get a search warrant.

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