The law narrowly defines the circumstances in which a blood draw may be performed without the driver’s consent. One circumstance allowing for forcible extraction of a blood sample is set forth in Florida Statutes section 316.1933(1). This section authorizes a blood test where an officer has probable cause to believe a driver under the influence of alcoholic beverages has caused death or serious injury to a human being, including himself. Section 316.1933(1), requires the officer to have ‘probable cause’ to believe that the driver was ‘under the influence of alcoholic beverages.’ For example, if you are in a crash where someone is killed, or where you or someone else is seriously injured, the police may take your blood without your consent if they have probable cause to believe that you are intoxicated to the extent that your normal faculties are impaired. Unless you consent, the police must obtain a warrant from a judge before they can order a blood draw. Under the influence and intoxicated means something more than just having consumed an alcoholic beverage.
What Is Serious Bodily Injury?
The term ‘serious bodily injury’ means an injury to any person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
What Is ‘Probable Cause’?
The definition of probable cause is tricky. A definition of probable cause is, ‘(A) reasonable ground for supposing that a charge is well-founded’ (Merriam-Webster, 2019). In other words, the police must have some evidence that you are under the influence and impaired. The police cannot arrest you for DUI or take a blood draw based on a hunch, they must have some real evidence based on facts clearly indicating that you are under the influence and impaired.
What Is ‘Under the Influence?
A person is deemed to be under the influence of alcoholic beverages when (1) affected to the extent that the person’s normal faculties are impaired or (2) when the person has a blood-alcohol level of 0.08 percent or higher. Some of the things that may indicate impairment are the odor of alcohol, the defendant’s reckless or dangerous operation of a vehicle, slurred speech, lack of balance or dexterity, flushed face, bloodshot eyes, admissions, poor performance on field sobriety exercises, and behavior after an accident. The presence of an odor of alcohol alone is generally not considered an accurate and reliable measure of impairment and, thus, is rarely deemed sufficient for a finding of probable cause.
Whether a person has consumed sufficient alcohol to be deemed ‘under the influence’ or ‘impaired’ is a judgment call made by a police officer. But, it must be based on objective facts and circumstances observed by the officer or reliable information given to the officer by others.
Why Should I Contact a DUI Defense Attorney?
If you or a loved-one are suspected of or have been arrested for DUI, it is critical that you get the help of an experienced DUI defense attorney. If you are in a crash where someone is killed, or where you or someone else is seriously injured, and the police take your blood without your consent, without a warrant or probable cause to believe that you are intoxicated and impaired, the evidence may not be used against you. DUI cases are complex and require the help of someone with experience and knowledge concerning this very serious process. An experienced DUI lawyer may be able to help you get the case dismissed or avoid a lengthy prison term.
Why Fernandez & Hernandez?
The attorneys at Fernandez and Hernandez have experience with DUI cases and will work vigorously to protect your rights and get the very best resolution of your case. Fernandez & Hernandez can assist and guide you through the process. DUI is very serious and can be complex. Fernandez & Hernandez may be able to help you find a solution.
If you or a loved one needs legal assistance with a DUI call Tampa Criminal Defense Attorney Daniel J. Fernandez of Fernandez & Hernandez at 813 229-5353.