Blood

Many misdemeanor DUI cases, particularly those that involve crashes, involve the attempt, and sometimes actual, collection of a suspect’s blood (Fla. Stat. 316.1932(1)(c)).  The State can obtain the results of a blood draw in one of two ways, and this hinges on whether the suspect consents.

In a misdemeanor DUI, if the suspect consents to the blood draw, then the blood is often referred to as “legal blood”. As a threshold matter, for a trial court to admit legal blood, the State must prove that the officer made the request at a medical facility, such as in a hospital or in the back of an ambulance.  Second, the State must establish that a breath or urine test would have been impractical or impossible.   Third, the State must show that the arresting officer complied with Florida’s Implied Consent Law.  The Implied Consent Law requires the officer to explain the consequences of failing to submit to the blood draw – either a one-year license suspension, or an 18-month one and further misdemeanor charges, if the suspect had previously refused to submit to lawfully requested testing.

If the suspect does not consent, the State can still get the results of any “medical blood”, blood that the treating facility drew, admitted at trial.  To get access to this blood, the State typically issues a subpoena to the medical facility for the medical records of the suspect.  The State must notify the suspect with a “Notice of Intent to Issue Subpoena Duces Tecum, and if the suspect does not object to the subpoena, the records are turned over within a reasonable time (usually about two-weeks).  If the suspect objects, the Court holds a Richardson Hearing, where the State must prove that the medical records are “relevant” to the pending criminal charges, typically an easy hurdle for State to overcome, especially without the help of an experienced attorney.

The requirements for the State to be able to admit medical and legal blood differ.  In fact, individual prosecutors often do not know what they need to prove to admit these two different types of evidence.  This dynamic frequently results in a skilled defense attorney getting the results of a blood draw thrown out – that is, the results are not admissible as evidence in a trial.  The jury never sees them.

DUIs that involve a death or serious bodily injury also often involve blood draws, but pursuant to a different statute than the one that governs misdemeanor DUIs and blood draws (Fla. Stat. 316. 1933). This statute provides law enforcement officers with the right to use “reasonable force” to take blood by force as part of a DUI investigation for impairment or intoxication in cases involving serious bodily injury or death. Recent United States Supreme Court cases have somewhat muddied the waters as whether the police need to obtain a warrant absent the suspect’s voluntary consent.

If you have been arrested for DUI in South Florida, and were subject to a blood draw, or have received a “Notice of Intent to Issue Subpoena Duces Tecum”, attorney Michael White can help.  You may have numerous defenses to fight the charge and/or minimize the penalties.    Contact him today for a free consultation.

Blood