Many Tampa DUI attorneys are asked about how the State of Florida can forcefully make someone take a DUI blood test when under suspicion of driving under the influence. Few areas of driving under the influence cases are so heavily litigated as issues concerning the forceful blood draws. These DUI blood tests are extremely intrusive and controversial amongst criminal defense attorneys. Before tackling this complex issue, it is critical to begin at the start of the issue – implied consent. Our blog article concerning implied consent can be found here for your convenience. Further, please check out our Tampa DUI attorney blog for further articles and questions about DUIs.
As we have discussed elsewhere in our Tampa DUI attorney blog, implied consent essentially lays out your obligations as a Florida driver to comply with certain chemical testing procedures. Implied consent is codified in Florida as Section 316.1932. In general, it provides when law enforcement is permitted to request blood, breath or urine testing and what tests you are legally obligated to take. For example, it provides the basis with which law enforcement can request a urine test from a Florida driver. As you can imagine, Florida law has determined, rightly so, that forceful blood draws are extremely intrusive and that these tests should be tests of last resort. As to a DUI blood test, it permits a request for blood, if the law enforcement officer has a suspicion that the driver is under the influence of controlled substances, chemical substances and/or alcoholic beverages, the person is being treated in a hospital or other medical facility and a breath or urine test is impossible or impractical. Clearly, the Florida Legislature was trying to put some safeguards on blood draws to ensure they are conducted in a reliable, somewhat sterile environment both for the safety of the accused and evidence collection purposes. Refusal to submit to approved testing results in a twelve (12) month suspension, if it is your first refusal or eighteen (18) months, if it is your second refusal. Additionally as we discuss elsewhere on our Tampa DUI attorney blog, a second refusal can also provide for a separate criminal charge for refusing approved testing. It also worth noting this refusal will be used against the individual at trial, depending on the Assistant State Attorney trying the case, it can either be incredibly persuasive or not.
Further, Florida law under Florida Statute Section 316.1933 permits the forceful withdrawal of blood, if a law enforcement officer has probable cause that a vehicle was under the actual physical control of a person under the influence of a chemical substance, controlled substance or alcoholic beverage caused death or great bodily harm. The Statute requires law enforcement to use “reasonable force if necessary to require such person to submit to the administration…” Under subsection (2)(a) of the Statute, only medical officials are permitted to withdraw the blood, this clearly indicates the Florida Legislature was not interested in law enforcement attempting to withdrawal blood from individuals. Additionally, the final sentence of that paragraph deals with the most interesting portion of the section, what is commonly known as “medical blood.” This provision is very contentious because it permits law enforcement to use someone’s own blood, withdrawn solely for treatment purposes, against them in their prosecution. As you can imagine, this is incredibly frustrating, since the blood is taken for a seeming innocent purpose, only to be used against you. Given the nature of DUI blood tests, these tests are heavily litigated and a very likely place to begin investigating any potential evidence to suppress.
Obviously, DUI blood tests are a hotly contested issue in Florida DUI cases. Blood is unique in its ability to attempt to show the presence of chemical and/or controlled substances and alcohol, unlike a breath or urine test, which will only show the presence of one or the other. Unfortunately, many law enforcement agencies, namely the Florida Highway Patrol, have begun attempting to circumvent the protections and advisement of implied consent by immediately requesting once complete a DUI blood test from the accused. This is clearly an attempt by law enforcement to circumvent the legal requirements of implied consent. It is absolutely critical that if you are asked for a sample of your breath, urine or blood, without first hearing the advisement of implied consent that you consider why the law enforcement officer doesn’t want to inform you of your responsibilities. Additionally, many law enforcement officers give their version of implied consent, which of course isn’t recorded and doesn’t meet the statutory requirements, to get someone to consent to a chemical test. This is an area Tampa DUI attorneys are constantly litigating because of the importance of the issues in your Tampa DUI. We have litigated these issues throughout the entire Tampa Bay area.
If you or someone you know has questions concerning their Tampa DUI, contact the Tampa DUI attorneys of Hackworth Law for a free case consultation. If you would like to contact one of our Tampa DUI attorneys immediately, please use the “contact us now” tab in the upper right hand corner of our website. We have handled thousands of criminal cases throughout the Tampa Bay Area including a wide variety of cases ranging from driving under the influence to murder. Thanks for taking the time to check out our Tampa DUI attorneys blog and we look forward to working with you.