In 2005, DUI arrest statistics were collected by NHSTA from across the country to determine how the rate of refusal to submit to a breath test varies from state to state. The rates ranged from a meager 2% refusal rate in Delaware to an astounding 81% refusal rate in New Hampshire. Florida had the third highest refusal rate in the country at 41%. It is widely known that drivers who refuse to submit to a breath test are statistically more likely to ultimately avoid a conviction for DUI. In view of these statistics, states with high refusal rates nevertheless have a number of tools at their disposal to lower the rate of refusal, such as:
- Administratively revoking the driving privilege of motorists who refuse to submit to a breath test or subjecting them to criminal penalties for their refusal.
Florida has adopted both of these methods in an effort to combat their high refusal rate. In Florida, the first refusal carries with it a one year license revocation and the second refusal is a mandatory 18 month revocation. Further, the second refusal is an independent criminal charge. See 2009->Ch0316->Section%201932#0316.1932">Fla. Stat. 316.1932(1)(a);
- Using a refusal as evidence of guilt for the underlying charge of DUI.
In Florida, a prosecutor can inform a jury that the DUI driver refused to submit to a breath test and argue that the “refusal” is proof of a “consciousness of guilt.” In other words, the driver refused the breath test only because he knew the results would be over the presumptive level of impairment.
- Allow police officers in limited circumstances to secure a blood sample without a warrant, with reasonable force if necessary, from an uncooperative driver.
In Florida, drivers who have been involved in an accident and transported to a medical facility for treatment can be requested to submit to a blood draw if the taking of breath or urine becomes impossible or impracticable. An extreme statutory remedy of a “forcible blood draw” is available only when the driver caused the death or serious bodily injury of themselves or another person. See 2009->Ch0316->Section%201933#0316.1933">Fla. Stat. 316.1933(1).
Florida Law Enforcement Now Securing
Blood Draws in Routine DUI Arrests
There is currently no statutory limitation on the use of a warrant by law enforcement to secure a blood sample against the will of a person who is routinely arrested for DUI. Consequently, Florida courts are required to look to the Florida Constitution for guidance as to whether new programs designed to collect blood samples at DUI check points or incident to arrest will pass constitutional muster.
Such programs could be arguably constitutional in Florida because Article I Sect. 12 of the Florida Constitution states that the protections against unreasonable search and seizure are identical to the protections offered by the U.S. Constitution. Thus, Florida State court judges are instructed by the Florida Constitution to follow U.S. Supreme Court precedent when construing the right against unreasonable search and seizure. Unlike some sister states, Florida affords no greater 4th amendment protections to its citizenry that those afforded by the U.S. Constitution.
The Fourth Amendment of the U.S. Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Under the Search and Seizure provision of the Fourth Amendment of the U.S. Constitution, forcible blood draws subsequent to an arrest for DUI are lawful. The U.S. Supreme Court in Schmerber v. California, 384 U.S. 757 (1966) has long ago ruled that a blood sample may be taken from a DUI suspect. The Court in Schmerber determined that blood draws are not prohibited by the right against self-incrimination. The U.S. Supreme Court did of course put a limitation on the collection of blood, by requiring that the blood must be drawn pursuant to a lawful arrest.
Getting a warrant requires preparation of a sworn affidavit that establishes probable cause and review by an impartial magistrate (Judge). Of course, time is of the essence since alcohol in the blood stream may be eliminated by the human body with the passage of time. For this reason, Florida prosecutors are currently taking steps to streamline the process of securing evidentiary blood samples from persons routinely arrested for DUI.
In Brevard County, the Palm Bay Police Department sought to overcome the limitations of a driver’s refusal to Submit to a breath test. Law enforcement employed a template type document on a word processing machine inside of their mobile breath testing van. They quickly prepared an affidavit requesting the issuance of a search warrant for the extraction of a sample of the Defendant’s blood to test its alcohol content. The arresting officer then executed the affidavit and faxed it along with a proposed search warrant to the home of a local judge. The judge signed the warrant and faxed it back to the officer who transported the Defendant to the hospital for a blood draw that was performed by a certified phlebotomist. It’s important to note that the specimen was taken without the permission and consent of the driver who voiced his objection to same. A subsequent motion to suppress the blood results was denied by the court and the Defendant’s blood alcohol results were subsequently introduced into evidence against him. State v. Isley, 11 Fla. L. Weekly Supp. 1102a (Brevard County, September 15, 2004) See also: State v. Dunning, CT23787AXXX-MA (Duval County, Feb. 13, 2009); State v. McKinnon, CT18431AXXX-MA (Duval County, Feb. 19, 2009); State v. St. George, CT24421AXXX-MA (Duval County, January 29, 2009).
The Isley court found that:
1. The DUI blood draw warrant was in conformity with 2009->Ch0933->Section%2002#0933.02">Fla. Stat. 933.02(2)(a) which authorizes the use of any warrant for property that constitutes the means to commit a misdemeanor, i.e. the mixture of blood and alcohol;
2. Florida’s Implied Consent Law did not preclude the issuance of a search warrant for blood extraction in DUI cases;
How Some Drivers May Be Able To Avoid Blood Draws in Routine DUI Arrests
A close reading of the Isley decision reveals that law enforcement’s request for the warrant to extract the driver’s blood may have been denied by the judge, had the Defendant not assured the police officer that he did not suffer from any medical condition that would be aggravated or affected by the blood draw. For example, had the driver indicated that he suffered from hemophilia or AIDS, the judge would in all likelihood have refused to sign the warrant.
DUI prosecutions are recognized as perhaps one of the most complex criminal cases to litigate. They involve scientific evidence, breath testing administrative rules, DHSMV administrative proceedings, field sobriety testing and a host of evidentiary issues.
If you have been arrested for a DUI in Pinellas County, Florida you need a lawyer with the unique experience and background to thoroughly investigate all of your defenses. You can visit our DUI Web site at: www.duistpetersburglawyer.com for answers to Frequently Asked DUI Questions.
The Law Offices of Russo & Russo
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St. Petersburg, FL 33702
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Related Links:
Cops Drawing Blood in DUI Fight
Palm Beach Sheriff's Office Draws Blood at DUI Checkpoint
There Will be Blood, at DUI Checkpoints
Duval Judges Mull Legality of Forcibly Drawing Blood in DUIs
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