In Florida, most DUI (driving under the influence of alcohol or drugs) cases involve the police requesting the defendant take a breathalyzer test at the jail. This test is normally offered only after the police make the DUI arrest. Therefore, if the defendant has a low score on the breathalyzer, or even a 0.00 result, the defendant is still arrested for DUI. In many cases, the police will then request a urine or blood sample to test for other substances. The police do not admit error after making an arrest, and once the police effect the DUI arrest, there is no going back.
There are times when the police can draw blood and send the blood to the lab for testing of blood alcohol content. The police are not allowed to obtain a blood draw when a breath test is viable and reasonable, as in most DUI cases in Florida. However, the DUI suspect can request one, and there are other situations where the blood draw is permissible. This often comes up in DUI cases that involved serious accidents.
In Florida, when a person is involved in a serious accident and has a serious injury that requires a trip to the hospital, it may not be practical to obtain a breath sample from the DUI suspect. In those cases, the police may be allowed to obtain a blood sample at the hospital for testing. The police cannot do it in any situation where there is an accident and the suspect is taken to the hospital with serious injuries. The police need reasonable and sufficient evidence that the suspect was impaired while driving. However, it seems as if that standard is pretty low when serious accidents are involved.
In a recent DUI case near Jacksonville, Florida, a suspect crashed into the back of a truck. When the police arrived, they smelled alcohol and found the suspect bleeding and unconscious in his vehicle. He was taken to the hospital where the police officer asked if the suspect would agree to a blood draw. The suspect was too incoherent to respond. The police officer had the nurse take a blood sample anyway. It was later tested and found that the suspect was well over the legal limit in Florida. A warrant for his arrest for DUI was late obtained.
The criminal defense lawyer filed a motion to suppress the blood evidence claiming that the police did not have consent, a search warrant or other legal right to draw blood from the defendant. The court disagreed. Essentially, the court held that where there is a serious accident involving serious injuries caused by the defendant and the police smell alcohol coming from the defendant, that is likely sufficient to allow the police to obtain a blood sample without consent and without a search warrant.
If the accident was not caused by the DUI suspect, the odor of alcohol is probably not sufficient to obtain a blood draw without consent. However, the police might be able to articulate other incriminating factors that make getting a blood sample lawful.