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The "Bloody" Truth about DUI/DWI Blood Draw cases

Okay, so Halloween was a few weeks ago and this "vampiresque" topic would have been oh so appropro. But I missed it, sorry, but it is still important to understand when the police can request (or force) you to provide a blood sample in lieu of breath.

In many states, such as Florida, the police can request blood samples pursuant to the "Implied Consent" law under certain circumstances. One way is when a person is suspected of DUI/DWI and that person was taken to a hospital and a breath test is impossible or impractical (see Sec. 316.1932, Fla. Stat.). This often occurs when someone is in an accident and there are not serious injuries involved. However, mere presence at the hospital is not enough. Surrounding circumstances such as how long the suspect will remain at the hospital and whether or not the injuries are substantial and will require major medical attention.

However, if the person had no visible injuries and the police transport the person to the hospital in the abundance of caution, challenges to the blood test results (the blood alcohol concentration) could arise. For example, if the officer never speaks to any doctors or nurses about the diagnosis and never finds out if the person will require a long stay or not, then the request for blood could be unlawful. Any subsequent BAC results could be thrown out of court, especially where its obvious that the person is conscious and capable of providing breath.

In a recent blog post we looked at the law surrounding refusals to breath tests in DUI cases. But what about blood? Can a person refuse that? The answer is yes, under the above set of facts. But if the person is suspected of DUI and causes serious bodily injury or death, then the person may be forced to provide blood. (But see the recent USSC case in McNeely). Also, if the person who appears at the hospital is unconscious, then the law presumes that the person has not withdrawn their implied consent to the testing and the medical staff will draw blood at the officer's request.

Blood testing is thought by many experts to be a more accurate indicator of impairment. That is becasue impairment occurs in the brain and alcohol is transported to the brain in the blood. Breath tests are merely indirect "guesses" as to the amount of alcohol in the blood. See our FAQ web page for more discussions on these DUI/DWI topics.

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