In Florida and other states, when the police arrest a a person they suspect is guilty of DUI (driving under the influence), the police will almost always ask that person to submit to a blood alcohol test. First, as many people are unaware, this request and the actual test in Florida almost always takes place after the suspect has been arrested and taken to the jail. Therefore, if the suspect blows a low number, or even 0.0, the police are not likely to release, or “unarrest”, the suspect. That person is spending the night in jail regardless of a low or high alcohol reading. Also, blood alcohol tests are normally administered in the form of a breath test, or breathalyzer. After the arrest and once the person is taken to the jail, the suspect is taken into a room where the breathalyzer operator is located, and he/she is asked whether he/she will submit to the breathalyzer test.
There are DUI cases where it is not feasible to administer a breathalyzer test. One example would be where the suspect is injured after an accident and taken to the hospital. In that case, the police officer may be justified in requesting a blood draw so that blood can be sent to a lab and tested for alcohol content. However, the police in Florida cannot request a blood draw in every situation.
In a recent DUI case near Jacksonville, Florida, the defendant was in a serious accident. When the police arrived, the defendant was unconscious. He was taken to the hospital. The police officers at the scene of the crash said they smelled alcohol coming from the defendant and the vehicle. At the hospital, the police officer had the nurse draw blood from the defendant. After the blood was tested and found to have a blood alcohol content above the legal limit, the defendant was charged with DUI.
The criminal defense lawyer filed a motion to suppress the evidence of the blood alcohol test arguing that the police did not have the defendant’s consent or a warrant to draw his blood so the blood evidence was illegally obtained. The court disagreed. Florida has an implied consent law which basically says that everyone who obtains a driver’s license consents to a blood alcohol test when the police have probable cause to believe that person is driving under the influence of alcohol or drugs. Every state in the country has some kind of implied consent law for DUI cases. The police are supposed to request a breath test first, but if that is not practical for some legitimate reason, the police may request a blood draw. In this case, the police were not in a position to request either test because the suspect was unconscious. However, the court ruled that because a driver in Florida is subject to the Florida implied consent law, he already consented to a breath test, if practical, or the blood test if the breath test is not feasible. As a result, the state was permitted to take the blood and use the blood alcohol content evidence against the defendant in his DUI case.