DUI Investigations and the Use of Warrantless Blood Draws

Under Florida law, every driver who enjoys the privilege of driving a motor vehicle in Florida -
even those licensed in other states - gives their consent to blood-alcohol testing.”i Drivers are
notified of their consent to testing by language along the bottom of their driver’s license. ii Often,
motorists are unaware of this until they are arrested for driving under the influence of alcohol
(DUI) and then asked to take a chemical sobriety test to detect alcohol in their system. These tests
are most commonly breath or blood tests. Although drivers impliedly consent to these tests when
they get behind the wheel, that consent may be withdrawn at any time.
Until recently, many states made it illegal to withdraw consent and thereby refuse to submit to
breath or blood tests after being arrested for DUI. Doing so meant a license suspension of one
year or more.iii However, in 2016, the United States Supreme Court held that “motorists cannot
be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”iv
Effectively, drivers in Florida impliedly consent to breath tests but do not consent to blood tests.v
Thus, police officers are faced with two potential obstacles when performing these chemical
sobriety tests: first, a driver, once arrested, may withdraw his implied consent to a breath test; and
second, that driver never impliedly consented to a blood test.
Breath and blood tests are searches subject to Fourth Amendment scrutiny.vi The Fourth
Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause.”vii Therefore, without voluntary consent, performing a breath
or blood test on a suspect necessitates an exception to the warrant requirement. viii One such
exception is called the “search incident to arrest doctrine.” The analysis required to determine
when this exception applies is a categorical one and applies to all arrests.ix The exception may
apply after weighing “on the one hand, the degree to which it intrudes upon an individual’s privacy
and, on the other, the degree to which it is needed for the promotion of legitimate governmental
interests.”x Under this exception, a breath test may be performed incidental to a lawful DUI
arrest.xi
However, because blood tests are significantly more intrusive than breath tests, they do not fit
within the search incident to arrest exception.xii This can lead to problems while investigating a
DUI. Officers may find themselves in situations where a breath test is not possible. The most
obvious example is when the individual suspected of the DUI is injured and cannot blow into the
testing instrument. When this happens, the officer might order the suspect’s blood be drawn to
test for alcohol. Without the suspect’s voluntary consent, the officer can only order a blood draw
if the circumstances provide an exception to the Fourth Amendment’s warrant requirement. As
discussed above, the search incident to arrest exception does not apply to blood draws, but the
exigent circumstances exception may.
In Schmerber v. California, the Supreme Court held that drunk driving may present exigent
circumstances that would allow warrantless blood testing.xiii In that case, a police officer ordered
a blood sample from a driver who was receiving treatment at a hospital for car crash injuries.xiv
The Court found—under these facts—an officer may reasonably believe this was an emergency,
because the blood-alcohol level diminishes shortly after drinking stops.xv In applying the exigency
exception, the Supreme Court took a case-specific approach weighing the totality of the
circumstances.xvi Ruling on the specific facts of that case (including the time spent taking the
driver to the hospital and investigating the accident) the Court found no Fourth Amendment
violation, even though the warrantless blood draw took place over the driver’s objection.xvii
More recently, the Supreme Court further refined exigent circumstances justifying a warrantless
blood test.xviii The case of Missouri v. McNeely involved a routine DUI investigation where no
circumstances other than the natural dissipation of blood alcohol suggested that there was an
emergency.xix There, the Court held that the requisite exigency was not present to permit a
warrantless blood draw.xx The State of Missouri was seeking a categorical, per se rule: “Whenever
an officer has probable cause to believe an individual has been driving under the influence of
alcohol, exigent circumstances will necessarily exist because [blood alcohol concentration]
evidence is inherently evanescent.”xxi However, the Court rejected the categorical rule proposed,
favoring its established case-by-case analysis of exigency.xxii
The insistence of a case-specific analysis leaves states on their own to determine when the totality
of the circumstances permit a warrantless blood draw in DUI cases where a breath test is not
feasible. Two recent DUI cases found their way to Florida Appellate Courts with this question.
In both cases, the driver was injured in a crash that killed another person,xxiii the driver showed
signs of intoxication,xxiv and a warrant would have taken hours to retrieve.xxv In both cases, the
courts found that the circumstances constituted an exigency permitting a warrantless blood draw.
In essence, at least in Florida, attorneys are left to argue that the particular circumstances of their
case either do or do not provide an exigency exception to the warrant requirement.

i
Fla. Stat. § 316.1932 (2017)
ii
Text along the bottom reads, “Operation of a motor vehicle constitutes consent to any sobriety test required by
law”
iii
Fla. Stat. § 316.1932
iv
Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016)
v
Id. at 2186
vi
See Skinner v. Railway Labor Executives, 489 U.S. 602, 616-617 (1989); Schmerber v. California, 384 U. S. 757,
767-768 (1966)
vii
USCS Const. Amend. 4
viii
Birchfield, 136 S. Ct. at 2173-2174
ix
Riley v. California, 134 S. Ct. 2473, 2478 (2014)
x
Id. at 2484
xi
Birchfield, 136 S. Ct. at 2185
xii
Id. at 2185
xiii
Schmerber, 384 U.S. at 759
xiv
Id. at 758
xv
Id. at 770
xvi
Missouri v. McNeely, 569 U.S. 141, 156 (2013)
xvii
Schmerber, 384 U.S. at 770-772
xviii
McNeely, 569 U.S. at 165 (emphasis added)
xix
McNeely, 569 U.S. at 147
xx
McNeely, 569 U.S. at 165
xxi
McNeely, 569 U.S. at 151-152
xxii
McNeely, 569 U.S. at 152
xxiii
Goodman v. State, 229 So. 3d 366, 369 (Fla. Dist. Ct. App. 2017); Aguilar v. State, No. 3D13-2167, 2018 WL
443165, at *3 (Fla. Dist. Ct. App. 2018)
xxiv
Goodman, 229 So. 3d at 370; Aguilar, 2018 WL 443165, at *3
xxv
Goodman, 229 So. 3d at 370; Aguilar, 2018 WL 443165, at *3