DUI, Blood test, McNeely vs. Schmerber and Florida Statute 316.1933 (DUI Lawyer in Seminole County)

Date: 08-24-2013

Recently, the United States Supreme Court issued its opinion in the case of Missouri v. Tyler G. McNeely. Justice Sonya Sotomayer, writing for the Court, held “that natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” In other words, unless there is an emergency withdrawing blood from a person suspected of DUI without a warrant is prohibited under the Fourth Amendment to the U.S. Constitution. In 1966, the U.S. Supreme Court , in Schmerber v. California, held that law enforcement’s blood draw of the defendant and person suspected of DUI was lawful despite the fact that the blood draw was taken without the issuance of a warrant because an emergency existed that did not provide the opportunity to seek out a neutral and detached magistrate because the accused had to be taken to the hospital, and the scene of the accident required significant investigation.


The differences between McNeely and Schmerber are many. The clearest distinction is that McNeely was not in an accident, no one was injured, and he did not have to go the hospital. Thus, unlike in Schmerber, no emergency existed. Another difference between McNeely and Schmerber is the passage of time the advances in technology especially forms of communication, i.e., email, texting, scanning, instant messaging, etc… Thus, the ability to get a warrant in 1966, the year of the Schmerber opinion, the task of getting a warrant signed was much more arduous then the task is today. Today, a warrant can be typed, emailed to a judge from a laptop in a patrol car, and returned electronically signed in an instant. (This is how officers were getting warrants to take blood in DUI cases in Brevard County, See State v. Gregory G. Geiss). Thus, in this day and age, the facts in Schmerber may not be sufficient to allow for a blood draw without seeking a warrant and issuance of said warrant.


Since the McNeely decision, a question has arisen: Does Florida Statute 316.1933, on its face, violate the warrant requirement found in the Fourth Amendment to the U.S. Constitution? Further, does Florida Statute 316.1933 violate the Fourth Amendment as applied in particular situations?


Florida Statute 316.1933 provides:


(1)(a) If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person.


The above statute does not look at particular facts from a particular case as is required by the United States Supreme Court’s opinion in McNeely. Thus, on its face, 316.1933 could be held unconstitutional. Further, due to the advances in technology the emergency that once existed in Shmerber no longer exist. Thus, just because someone is injured, or perhaps unfortunately deceased, the exigency (immediacy) of the situation is not increased. The ability to get a warrant still exist.
Ultimately, it is the author’s opinion that the constitutionality of Florida Statute 316.1933 will be done on a case by case basis as it applies to each individual case.
If you’ve been charged with DUI in Seminole County or Orange County please call for a complimentary consultation 407-865-8888.

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