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No Warrant, No Blood Draw in Florida

The Impact of the Birchfield Decision on DUI Blood Draws in Florida A recent decision by the United States Supreme Court chips away at the so-called "DUI exception" to the Constitution. The case makes clear that law enforcement officers in Florida will not be able to take blood in a DUI related case without either a valid warrant or voluntary consent.

The Search-Incident-to-Arrest Exception Doesn't Apply to a Blood Test In Birchfield v. North Dakota, 579 U.S. ___ (2016), the United States Supreme Court concluded that the Fourth Amendment allows breath tests under the "search-incident-to-arrest" exception to the warrant requirement, but refused to recognize that exception in blood draw cases. The court concluded that: "Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not."

An Unconscious Person Can't Give Free and Voluntary Consent The Birchfield case continues to strengthen one strong message to law enforcement officers: If you want blood, then get a warrant. This message was very clear when it comes to a person rendered unconscious (usually because of a crash). Court from other jurisdictions have generally found that, under McNeely, implied consent of an unconscious suspect is insufficient to satisfy the Fourth Amendment.

The Birchfield decision solidified that conclusion. Although none of the petitioners in the Birchfield decision were unconscious, the Court espoused: It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be. Id., slip op. at 35 (V) (C) (3).

The Supreme Court also stated, "A blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested." In Birchfield, the Court rejected the alternative argument of implied consent, as the state statutes at issue went further than imposing civil penalties and evidentiary consequences on motorists who refused to comply and imposed criminal penalties. Id., slip op. at 36 (VI).

Because Florida's implied consent warning also threatens criminal penalties for a second refusal, the same issues exist in Florida. Even if the State had probable cause to arrest the Defendant for driving under the influence, the State must now show that exigent circumstances existed to take the blood from a person unable to give free and voluntary consent, which would include an unconscious person. In other words, implied consent is not the same as free and voluntary consent required for any exception to the warrant requirement.

Other than consent, exigent circumstances are the only other exception that could apply to a blood draw after Birchfield. The exigent circumstance doctrine generally provides that when probable cause has been established to believe that evidence will be removed or destroyed before a warrant can be obtained; a warrantless search and seizure can be justified.

Many of these cases, however, involve the situation imagined by the McNeely Court "in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer." 133 S. Ct. 1552, 1561 (2013). In light of McNeely, if the officers take a person's blood under Florida statute 316.1932, Florida's implied consent scheme would be insufficient to satisfy the Fourth Amendment without a warrant, free and voluntary consent, or exigent circumstances.

Exigent Circumstances in a Blood Draw Case in Florida The case acts as a follow up Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013), which announced the following test when determining whether exigent circumstances apply: "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so."

The decision is made by looking at the totality of the circumstances and the prosecutor has the burden under a clear and convincing standard of proof. Conclusion Criminal defense attorneys across the State of Florida will continue to file and litigate motions to suppress forced blood draws taken without a warrant or consent. If the proper motions are filed, any claim of exigent circumstances must be proven by the prosecutor by clear and convincing evidence under a totality of the circumstances. These recent Supreme Court decisions send a strong message to prosecutors and law enforcement officers in the field: If you want a blood draw then get a warrant. If you were charged with DUI after submitting to a forced blood draw, then contact the experienced criminal defense attorneys at Pumphrey Law, in Tallahassee, FL. We can begin your defense today.

These recent Supreme Court decisions send a strong message to prosecutors and law enforcement officers in the field: If you want a blood draw then get a warrant. If you were charged with DUI after submitting to a forced blood draw, then contact the experienced criminal defense attorneys at Pumphrey Law, in Tallahassee, FL. We can begin your defense today.

If the proper motions are filed, any claim of exigent circumstances must be proven by the prosecutor by clear and convincing evidence under a totality of the circumstances. These recent Supreme Court decisions send a strong message to prosecutors and law enforcement officers in the field: If you want a blood to draw then get a warrant. If you were charged with DUI after submitting to a forced blood draw, then contact the experienced criminal defense attorneys at Pumphrey Law, in Tallahassee, FL. We can begin your defense today.

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Don Pumphrey Jr.
Donald Pumphrey Jr.

Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.

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