Do the police have the right to draw your blood?
Did you know that in Florida, if there is an accident, and the DUI suspect is taken to a hospital due to injury, a criminal investigation can be ongoing even if the suspected DUI driver is not arrested?
Did you also know that under the appropriate circumstances an officer can start the process to secure a blood test result without making an arrest, and even when the suspected DUI driver is unconscious or medically incapable of declining a test?
Fla. Stat. §316.1932 is often called Florida’s Implied Consent Statute, gives the officers wide latitude to secure a chemical test. In essence, you have agreed to take a chemical test if an officer suspects you of DUI, and if you are not arrested this consent is presumed unless you specifically withdraw it. If you are unconscious or medically unable to say no; in the right circumstance, your blood can be drawn without your knowledge.
Since most DUI drivers are arrested when they are pulled over, these other types of DUI investigations are not an everyday occurrence, and officers are more likely to make a mistake using this procedure.
For example, if an officer suspects someone of DUI and there is serious bodily injury an officer can compel a blood test if the driver is unconscious, being treated by hospital or paramedic staff, and even when the suspected DUI driver is saying no to the test. These blood draw situations are easy for an officer to make a mistake including:
- If the officer asks a person who is not qualified to take the blood sample,
- If the person taking the blood sample uses testing equipment that is expired,
- If the person taking the blood sample doesn’t handle it the proper way, be it not shaking the blood vial appropriately, storing the sample in the trunk of a police car for too long prior to sending it to the lab,
- Mishandling the shipping of the blood sample,
- Sending the blood sample to a laboratory that is no longer certified to analyze blood, and,
- If the sample is destroyed after testing, but before your case comes to court.
These are just some of the errors/mistakes that can occur when a law enforcement officer tries to use a blood test rather than arresting someone and requesting them to submit to a breath test.
Fla. Stat. §316.1932(1)(c), allows for a blood test rather than a breath or urine test, but only when an officer has reasonable cause to suspect DUI, and a breath or urine test is impracticable. This last requirement of impracticability is where the officers often can get it wrong. Just because it takes a little bit longer for an officer to wait for a person to finish being cared for is not automatically impractical.
If an officer was trying to use this statutory exception, one of the above mistakes can make or break your DUI defense. Often these investigations can take quite a bit of time due to how backed up the analyzing laboratory is, and the flow of paperwork results between several agencies. During this time period, there are steps that we can take on your behalf to try to avoid the DUI, and if not able to avoid the DUI, make defending your case in court much more successful.
There are also times where a prosecutor realizes that the blood draw requested by a police officer was not done right, and they then try to subpoena the hospital records of any medical tests. Fla. Stat. §456.0575(5)(a) and the Florida Constitution Art. I §23 also guarantees the right of privacy that extends to a person’s medical records. These provisions have created the requirement that before the authorities can gain access to the medical records that could prove a suspected DUI driver’s blood alcohol content, the person must be notified, and be given 10 days to object.
If there is an objection, then a court must decide if the records can be used against someone who appeared for medical treatment. If there is no objection within the 10days of the notice, then the authorities can use the medical records as evidence.
So if you have received a letter stating anything about your medical records, times is of the essence, and you need to call the law offices of Richard Della Fera today.