Exigent Circumstances for a Forced Blood Draw in Florida DUI Cases

The ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013), requires that law enforcement officers, without express and voluntary consent, obtain a search warrant prior to taking blood during a DUI-related investigation.

In Florida, law enforcement officers are also bound by the 5th D.C.A.’s decision in State v. Geiss, 70 So. 3d 642, 646 (Fla. 5th DCA 2011), which does not allow for a search warrant for blood in any misdemeanor DUI case.

Therefore, if a misdemeanor DUI case involves a non-consensual forced blood draw, the criminal defense attorney should file and litigate a motion to suppress any mention of the blood test or results at trial.

At least in misdemeanor cases, officers should no longer be taking blood from unconscious people or anyone that declines the voluntary request for blood. As a matter of public policy, this is a good result for all Floridians.

These new rules will cut down on officers entering an ambulance or emergency room and demanding that paramedics, nurses and doctors stop providing emergency care for long enough to take a “legal blood sample.” The emergency health care provider has to stop everything to use the officer’s needle and tubes from the special blood kit to take blood samples that are given to the officer to be used as evidence in a criminal case.

Health care professions will be happy with this new development.

What about Blood Draws in Felony DUI Cases with Death or Serious Bodily Injury?

In a felony case for death or serious bodily injury, Florida Statute 316.1933 purports to allow a forced and warrantless blood draw, although the constitutionality of that statute is in question after the Supreme Court’s ruling in Missouri v. McNeely, 133 S.Ct. 1552 (2013).

The issue in many of these cases is whether the prosecution can meet the heavy burden of showing exigent circumstances existed to justify not seeking a warrant and instead forcing the driver to submit to a pre-arrest, non-consensual extraction of blood.

With regard to exigency, the case of Missouri v. McNeely, 133 S.Ct. 1552 (2013), makes it clear that Schmerber v. California, 86 S.Ct. 1826 (1966) did not authorize warrantless searches of a person’s blood simply because a blood alcohol level declines over time.

Instead, under Schmerber, the judge must look at each case on an individual basis to determine if an exigency actually required the taking of the blood. The Court reiterated that the question of the reasonableness of a warrantless search should be answered on a case-by-case basis considering the totality of the circumstances. McNeely, 133 S. Ct. at 1563.

The Court acknowledged that blood alcohol concentration (BAC) evidence is problematic because “an individual’s alcohol level gradually declines soon after he stops drinking,” and thus, “a significant delay in testing will negatively affect the probative value of the results.” Id. at 1561.

But the Court dismissed this concern, finding that this exigency did not warrant departure from the careful case-by-case assessment of exigency that the Fourth Amendment requires. See id. The Court’s reasoning appears to have been based on two key facts.

First, diminishing BAC is different from other destruction-of-evidence scenarios. With some types of destructible evidence, law enforcement is truly confronted with a “now or never” situation, such as when an arrestee can immediately and permanently destroy the evidence completely. Id. at 1561. By contrast, BAC evidence “naturally dissipates over time in a gradual and relatively predictable manner.” Id.

As such, experts can often work backwards from the BAC at the time the blood sample is taken to determine the BAC at the time of the alleged offense. Id. at 1563. Second, the Court noted that advances made in the forty-seven years since Schmerber allowed for more expeditious processing of warrants. Id. at 1561-62.

For instance, the Federal Rules of Criminal Procedure permit magistrates to issue warrants over the telephone. Id.

The State of Florida has also seen advances made in the last forty-seven years that allow for more expeditious processing of warrants. Obtaining a warrant in a DUI felony case is often underutilized in counties throughout the Tampa Bay area including Hillsborough County, Pinellas County, Polk County, Pasco County, Manatee County and Sarasota County.

Nevertheless it is important to remember that Florida law expressly allows for electronic search warrants. Added effective July 1, 2013, § 933.07(4), Fla. Stat., provides that a search warrant shall be deemed to be issued by a judge at the time the judge affixes the judge’s signature or electronic signature to the warrant. Furthermore, it provides that the term “electronic signature” has the same meaning as provided in § 933.40, Fla. Stat.

In addition, the Florida Legislature’s enactment of the “Electronic Signature Act of 1996,” which specifically provides that “[u]nless otherwise prohibited by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature,” § 668.004, Fla. Stat. (2003), indicates an increasing acceptance of this alternative signature form. See also In re Amendments to the Rules of Judicial Administration-Rule 2.090, 681 So.2d 698, 700 (Fla.1996) (the Florida Supreme Court stated its intention to “cooperate with the Secretary of State in implementing any electronic signature processes and procedures in the court system”). See also 14A Fla. Jur 2d Criminal Law—Procedure § 717.

The technology allowed by § 933.07(4), Fla. Stat., expedites the warrant procurement process so as to virtually eliminate circumstances that can truly be considered exigent. As explained in a recent law review article:

Technology is rapidly approaching the point where electronic communication between the law enforcement officers in the field and the magistrate issuing the warrant is continuously available, thereby narrowing the situations in which the exigent circumstances exception should be applied. In this modern age of high-powered laptops equipped with cellular access to the Internet, police (like the general public) have ready access to communication methods such as email, instant messaging, and even face-to-face video conferencing wherever they go.

Swearing by New Technology; Strengthening the Fourth Amendment by Utilizing Modern Warrant Technology While Satisfying the Oath or Affirmation Clause, Brigham Young University Law Review, 2014 B.Y.U. L. Rev. 927 (2014). (citations omitted).

Without a finding of exigency, the blood test in a DUI with death or serious bodily injury should be suppressed as a violation of the Fourth Amendment. The next article will explore a related issue of whether Florida Statute Section 316.1933 is unconstitutional on its face by allowing the illegal forced taking of blood prior to any arrest without exigent circumstances.

The attorneys at the Sammis Law Firm are experienced in fighting DUI case throughout the City of Tampa, all of Hillsborough County and the surrounding counties. We are particularly experienced in fighting cases that involve a request for a urine test or breath test.

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