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Q. “Can they really take my blood without my permission?!” A. “You can’t get ‘blood’ out of a stone, or out of the ‘stoned!’ ” — Ft. Lauderdale criminal lawyer John M. Castellano

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Would you like to know the law on whether the police can forcibly draw your blood at an accident scene — whether someone dies or not? I’ve been defending the criminally accused in DUI Manslaughter (and DUI cases generally) as a Ft. Lauderdale DUI lawyer and Florida criminal defense lawyer for many years now … and I’ve been blessed with the privilege of helping families ALL across the State of Florida — as evidenced by this redacted motion from one of my Tampa DUI Manslaughter cases, just below, where you can now read for yourself the law in Florida on whether they can forcibly “take” your blood:

STATUTORY AUTHORITY FOR BLOOD DRAW

Florida Statute 316.1933, provides the relevant law for purposes of determining the blood tests for impairment and intoxication in cases of death or serious bodily injury, and it provides in pertinent part, as follows:

“(1)(a) If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood…”

Thus a finding of probable cause must be made before a Defendant can be required to submit to any blood testing. In the instant case, the two officers who had contact with the Defendant, Officer — and Officer — did not note any signs of impairment which would result in a forcible blood draw. In fact the record evidence shows that the blood draws in the instant case were done pursuant to standard operating procedures required by the Office of the State Attorney and at the command of Sergeant —.

Standard operating procedures of requiring blood draws in cases where there is death or serious bodily injury do not comply with the statutory dictates of section 316.1933. State v. Webb, 753 So.2d 145 (Fla. 3rd DCA 2000).

In fact, Officer — testified in deposition that she believed that even absent impairment, based upon the severity of the accident a blood draw would have been mandatory in any event. (See deposition of Officer — at page 31, lines 7-11, incorporated herein by reference.)

This point is bolstered by Sgt. —, who supervised the investigation and revealed that the policy or “standard protocol” is to obtain blood draws in all crashes. (See deposition of Sgt. — at page 76, lines 14-16, see also page 83, lines 14-19, page 86, lines 1-3, incorporated herein by reference.

CONSENT

The determination of voluntary consent is a determination for the court to make based on the totality of the circumstances. Washington v. State, 653 So.2d 362, 364 (Fla. 1994), cert. den., 516 U.S. 946, 116 S.Ct. 387, 133 L.Ed.2d 309 (1995); Reynolds v. State , 592 So.2d 1082 (Fla.1992).

The burden is upon the State to prove by a preponderance of the evidence that the Defendant freely, knowingly and voluntarily consented to the blood draw. Washington, at 364.

The facts clearly show the Defendant was not capable of providing a knowing, intelligent and voluntary consent at the time of the blood draw.

In fact the facts demonstrate coercion on the part of the police. The Defendant was in an ambulance, with his leg being held to stop from bouncing around, he was in objective extreme pain and not objectively under the influence of any intoxicating substances. The Defendant was denied necessary medical treatment and the medical personnel had to ask the police to leave the ambulance.

However the police refused to leave until the Defendant submitted to a blood draw and then he was allowed to receive necessary medical attention, that being pain medication, which had an obvious calming affect. Thus, the consent, if any, was the product of coercion.

Additionally, the facts clearly demonstrate that the Defendant was not coherent prior to being transported in the ambulance. He was unaware of the correct year and in fact did not know that he was chewing gum when he was observed to be possibly chewing gum by the police and medical personnel.

Thus, in causing the Defendant to wait for the medication to be administered, he was coerced into submitting to the blood draw. In order to do the blood draw correctly, it had to be done prior to the administration of the pain medications, although Officer — maintains that there was no unnecessary delay in administering pain medication. (See deposition of Officer — at page 11, line 8 through page 12, line 17, incorporated herein by reference.)

Section 316.1932(1)(a), Florida Statutes (1991), provides that any person who accepts the privilege of driving a motor vehicle in this state and who is lawfully under arrest for DUI is “deemed to have given his consent” to the withdrawal of breath and urine samples — but not blood samples from his or her person and to the scientific testing of such samples.

The statute, however, does not provide for the forcible taking of breath and urine samples -which arguably Schmerber authorizes –as it gives the arrested person the option to refuse to give such samples, although certain consequences are imposed for the refusal.

Accordingly, the person must be advised that the failure to submit to a lawful test of his/her breath or urine “will result in the suspension of his [or her] privilege to operate a motor vehicle,” § 316.1932(1)(a), Fla. Stat. (1991), for a certain period of time, which suspension becomes effective immediately upon such refusal, see § 322.2615, Fla. Stat.(1991); further, the refusal to take the breath or urine test “shall be admissible into evidence in any criminal proceeding.” § 316.1932(1)(a), Fla. Stat. (1991).

As the Florida Supreme Court has stated, “under this provision, a conscious person is given the right to refuse to take a chemical [breath or urine] test if he [or she] is willing to suffer a . . . suspension of his [or her] driving privilege,” and “any careful reading of section [316.1932(1)] leads to the inescapable conclusion that a person is given the right to refuse [breath or urine] testing.” Sambrine v. State, 386 So. 2d 546, 548 (Fla. 1980), as cited in State v. Slaney, 653 So. 2d 422, 426 (Fla. 3DCA 1995).

Additionally, as the Defendant was not read implied consent and was not given an option of refusing the blood draw, his consent cannot be considered freely and voluntarily given but instead the product of a submission to apparent police authority.

Had Officer — advised the Defendant of his right to refuse the blood draw, his alleged consent may have been considered voluntary or at least the police activity would not be viewed as coercive. See, State v. Paul, 638 So.2d 537 (Fla. 5th DCA 1994), rev. den. 654 SO.2d 131 (Fla. 1995).

Consent cannot be merely a submission to apparent police authority. Chu v. State, 521 So.2d 330, (Fla. 4th DCA 1988).

Additionally, when a Defendant submits to a blood test that is not authorized by law, as here, the officer requesting the blood draw must fully advise the defendant of the implied consent law. See e.g., Chu. Officer —performed the blood draw pursuant to her Sergeant’s request, she was …
(More “blood law” later!) 🙂

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About the Author:

John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.

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