Blood Tests Banned in Misdemeanor DUI Investigations

Not too long ago, I touched upon the idea that Florida could see “no refusal” DUI checkpoints in the future, but last week Florida’s 5th District Court of Appeal put an end to that idea, at least for now. The court ruled that law enforcement cannot forcibly draw blood in a DUI investigation if it is a misdemeanor. The ruling still stands that blood can be drawn if it involves injury, death or if it is a felony case.

According to an article from Key News in Key West, attorneys on both sides of the argument agree on one thing: that blood tests are the most accurate of all sobriety tests. Where they differ is how the blood is used. Sam Kaufman, Key West defense attorney states,

“What they’re saying is that blood is not being used as a means to commit a crime…In other words, the statute states that evidence has to be property used to commit a crime. They’re saying that a person’s blood doesn’t fall into that category.”

Dennis Ward of Monroe County is for the “no refusal” forced DUI blood tests. He wants everyone who is pulled over and has a prior DUI to be subject to a blood test. Currently, the law stands that blood can only be drawn in felony cases. A suspect’s third DUI is only considered a felony if it happens within 10 years of the last convicted DUI but the fourth DUI is always a felony.

Ward says that this ruling is not going to stop his fight against drunk drivers. At this point in time he cannot do anything about first or second time offenders, but says this will not hold him back from moving forward with felony offenders.

Although this case stems from Key West, the article explains that this “ruling affects all of Florida because no other precedent has been set.” This sets back any movement towards the “no refusal” DUI check points coming to Tampa. It raises the question of whether or not the Geiss case mentioned in the previous post or any other current cases dealing with forced BAC tests will be appealed. Although the law has passed, this is likely not the last we will hear of the “no refusal” checkpoints and blood tests. This situation underlines the importance of effective legal representation if you’ve been charged with DUI/DWI.

“No Refusal” DUI Checkpoints- Could Florida see more in the future?

Towards the end of last year, we heard the idea that “no refusal” DUI checkpoints could be introduced to Tampa’s fight against drunk driving.

The “no refusal” checkpoints would consist of having a judge on scene, allowing them to issue a warrant for the driver in question requiring that they take a blood test to acquire if the driver was intoxicated.

Currently, a blood test is only to be used when there is serious injury or death involved. Obviously anyone can agree to a consensual blood test but it is very unlikely that anyone would.

According to an article from Floridatoday.com, an appeals court in Daytona on Tuesday questioned whether or not law enforcement could forcefully obtain a blood sample in certain DUI cases. This case dates back to 2009 when Gregory Geiss was pulled over for swerving between lanes. There was no serious injury or death involved but a judge was on scene, a warrant was issued, he had to take a blood test and was charged with a DUI.

The judge in the 2009 case did not allow the blood evidence to be used in the courtroom, but later the state appealed. Two arguments surfaced: Is blood a searchable property? Is the searching of blood an invasion of privacy?

According to the article, Defense Attorney Ernest Chang called the forced tests, “a judicial expansion of powers.”

In 2003, there was a similar case where the defendant was charged with a DUI because of a blood test. In this case, a panel of circuit judges decided in favor of the state 2-1.

It will be interesting to see how the circuit judges in Daytona decide on the Geiss case. With what has happened in past cases, and the decision of this case, we will see if the “no refusal” DUI checkpoints will make way to Tampa anytime soon, or if the current publicity to the Geiss case will put a hold on that.

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