Blood Draw and Breath Test in DUI Cases

As experienced DUI law firm in Tampa we are often asked the question under what circumstances can an officer draw your blood after either a DUI stop or a car accident involving a DUI suspect?

In most cases, when you are arrested for DUI you will be asked to consent to a take a breath test. As you are probably aware, the breath test is not mandatory and you are given the option of either taking it, or after the officer reads you implied consent, refusing it.

If you refuse to take the breath test, however, you face a mandatory drivers license suspension imposed administratively issued by the DSHMV. For a first time DUI arrest a refusal of the breath test will result in a one year drivers license suspension with the option of waiving your right to the formal review hearing and getting a hardship license immediately.

Unfortunately, your refusal can be used against you in court. The prosecutor will probably argue your refusal reflects consciousness of guilt and will claim that you had a guilty mind and knew you would blow over the legal limit hence the reason for your refusal. However, as Tampa DUI Lawyers we often get asked the question: when can an officer request a blood draw to test its contents?

Tampa DUI laws authorize blood draws primarily under two theories. First the implied consent under Florida Statute 316.1932(1)(c). Second, Florida Statute 316.1933 through the form of voluntary consent. Based on these two theories, there are only three ways an officer can request a blood draw and where a blood draw can be justified in trial.

The first is under implied consent when a person operating a motor vehicle appears at a hospital, clinic or other medical facility and the administration of a breath or urine test is either impractical or impossible. Additionally, under the implied consent theory an officer shall request a blood test when an officer has probable cause to believe that your operation of a motor vehicle caused the death or serious bodily injury to someone else. Lastly, a blood draw can be justified when a person voluntarily consents to a blood draw.

In State v. McGarry, 477 So. 2d 1030, 1031-1032 (Fla. 2d DCA 1985) the court found that in certain circumstances, no consent is required, particularly where there is “exigent circumstances and probable cause sufficient to constitute an exception to the Fourth Amendment’s exclusionary rule.” When a breathalyzer or urine is not impractical or impossible, and the person appears at a medical facility for treatment, a blood draw may still be admissible if the person actually and voluntarily consents. Chu v. State, 521 So. 2d 330, 332 (Fla. 4th DCA 1988).

If the above conditions are not met and a blood sample you were ordered to provide either after a DUI accident or a DUI stop that evidence may be suppressed. Contact a qualified DUI attorney today to discuss your case by calling (813) 444.3912. After that evidence is suppressed, the blood test results cannot be used against you at trial.

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