Police in Florida Cannot Normally Require Blood Test in DUI Case Where There is No Death or Serious Bodily Injury

Most DUI cases result from a police officer alleging that he/she observed the driver commit some traffic violation after which a traffic stop is conducted and a DUI investigation follows.  If the police officer believes the driver is impaired from alcohol, the officer will arrest the driver and take him/her to jail.  Only after the driver is booked into the jail is he/she asked to blow in the breathalyzer to try to determine his/her blood alcohol content.

Therefore, in most DUI cases, the police request that the driver submits to a breath test to try to find out the blood alcohol content.  There are, however, other tests.  Drawing blood and sending it to the crime lab is another way to try and determine a DUI suspect’s blood alcohol content.  However, the police are not always allowed to request a blood to test alcohol content since that test is obviously more invasive than a breathalyzer test.  A DUI suspect can always ask the police officer for an independent blood alcohol test, and the police have to accommodate the DUI suspect if it can reasonably be done.  But, the police can only seek a blood test in certain circumstances.

One situation where a blood test is fairly common is when a DUI case involves a serious accident.  After a serious accident, if the police officer believes a driver is drunk driving or impaired from alcohol, the police officer will want to try to find out the driver’s blood alcohol content.  It may not be feasible to explain a person’s rights and administer the breathalyzer in some of these cases.  For instance, if the driver is seriously injured and has to go to the hospital, it would not be possible to take the driver to jail and perform the breathalyzer test.  In these cases, the police officer can request a blood draw to send the sample to the lab for testing later.

The police in Florida cannot make this request in every case where there is an accident and drunk driving is suspected.  It must be a case where a breathalyzer test is not feasible under the circumstances or a case where an accident caused death or serious bodily injury to the suspect or someone else.

In a DUI case near Jacksonville, Florida, there was a serious crash, and the DUI suspect was taken to the hospital.  At the hospital, it was not yet clear how injured the suspect was.  At that point, the police officer told the suspect that he had to submit to a blood draw or he would lose his license for a year (the normal penalty for failing to submit to a breathalyzer or blood test after a lawful DUI arrest).  The suspect agreed, and his blood was taken for alcohol testing.  He was later arrested for DUI based on those blood test results.

The criminal defense lawyer moved to dismiss the blood alcohol content test results.  At the hospital, the officer could not state that the suspect was seriously injured or that a breathalyzer test was not practicable at the time he made the blood draw request.  If the suspect was not seriously injured, a breath test may have been feasible.  The police officer assumed the suspect was seriously injured and/or would not be released in a reasonable period of time and incorrectly told the suspect he must submit to a blood test.  Because the police officer was not within his right to seek a blood test at that point and incorrectly advised the suspect of his rights, the evidence of blood alcohol content was suppressed.

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