DUI Blood Test in Florida

In DUI cases, two types of blood tests might exist:

• the legal blood request by an officer; or
• the medical blood taken for treatment.

For legal blood draws, §316.1932(1)(c) and §316.1933 of Florida’s Implied Consent statute permit the officer to request that a motorist, suspected of driving impaired, submit to a blood test under the following limited circumstances. Section §316.1932(1)(c) requires:

• reasonable cause to believe the driver was driving while under the influence of alcohol or controlled substances;
• special circumstances to show that administering a breath or urine test was impractical or impossible to perform; and
• the driver appeared for treatment at a medical facility.

For this reason, many blood test DUI cases occur after a crash or accident when the driver is charged with DUI causing property damage or bodily injury. The blood test might also be requested if the driver enters an ambulance or goes to the hospital for any other reason.

Blood might be taken under §316.1933 if the law enforcement officer has probable cause that the suspect was DUI and caused or contributed to a death or serious bodily injury.

Under several recently announced decisions by the United States Supreme Court, even if an officer complied with §316.1932(1)(c) and §316.1933, the officer still needs a search warrant before seizing the blood. The only way to seize the blood without a warrant requires one of the following:

• free and voluntary consent for the blood seizure; or
• exigent circumstances for the blood seizure.

If the blood was taken without a warrant, these issues are often highly contested during a motion to suppress the blood taken.

In some cases, the prosecutor can also try to obtain medical records to show a serum test conducted by the hospital. Any medical blood test results are often challenging for the prosecutor to use at trial. The criminal defense attorney might also file a motion to suppress any mention of the medical blood test result before trial.

If only medical blood or medical records were obtained, no administrative suspension of the driver’s license should be triggered because there is no evidence of a BAC over .08 for whole blood from a crime lab. The criminal defense attorney should always file and litigate a demand for a formal review hearing when it is based on a BAC reading from blood drawn for medical purposes or tested at a medical facility instead of a crime lab.

Attorneys for the DUI Blood Test Case in Tampa, FL

If you were subjected to a blood test after a DUI arrest or investigation, contact an experienced DUI defense attorney at the Sammis Law Firm.

Our attorneys fight DUI blood test cases throughout the greater Tampa Bay area, including in the courtrooms in Tampa and Plant City in Hillsborough County, Brooksville in Hernando County, in New Port Richey and Dade City in Pasco County, in Clearwater and St. Petersburg in Pinellas County, in Bradenton in Manatee County and in Bartow in Polk County, FL.

Click here to read more about our Recent Case Results in DUI Cases.

We understand the new DUI Diversion Program in Hillsborough County called “RIDR.” If this is your first DUI arrest and no crash occurred, call us to determine whether you might be eligible to enter a diversion program.

Remember that even if you qualify for RIDR, you still need to contest the administrative suspension of your driver’s license, or a notation of the suspension will remain on your driving record for the next 75 years.

After an arrest for DUI in a case involving a blood test in or around Tampa or Plant City in Hillsborough County, FL? If so, contact an experienced DUI defense attorney at the Sammis Law Firm.

Call (813) 250-0500.

The Difference Between Legal Blood and Medical Blood

A legal blood sample is drawn for legal purposes. To admit the results of a legal blood test, the prosecutor with the State Attorney’s Office must show substantial compliance with the Implied Consent rules. On the other hand, to admit the results of a medical blood test, the state must demonstrate the technician’s qualifications, the test’s reliability, and the meaning of the results.

No legal presumption arises from the results of a medical blood test. State v. Sclafani, 704 So.2d 128 (Fla. 4th DCA 1997); State v. Strong, 504 So.2d 758 (Fla. 1987).

For this reason, even if the medical blood test results are over .08, the investigating officer should not use that evidence to trigger an administrative suspension. This is particularly true since the administrative suspension considers a BAC reading from a whole blood sample, while most medical blood samples involve a BAC reading of the serum.

Defenses in DUI Blood Test Cases in Florida

During DUI blood test trials, an experienced criminal defense attorney shows why the BAC reading several hours after the crash might not have been accurate or reliable.

Fermentation is often the most obvious factor that can add alcohol to the samples when it wasn’t present in the body when the blood was extracted. Fermentation turned blood sugars into alcohol and inflated the blood alcohol reading;

Other issues that can artificially inflate the BAC reading might include the following:

• a showing the subject’s arm was not appropriately sanitized before the blood draw;
• a showing that the blood was not immediately and repeatedly inverted with a rolling motion which is the only way to mix the anticoagulant and preservatives properly;
• problems with how the blood was collected and stored;
• showing problems with the change of custody before and after the blood arrived at the crime lab;
• showing the blood sample wasn’t immediately refrigerated;
• showing the delay between the blood draw and testing increased the changes of fermentation;
• other reasons why microorganisms could have contaminated the sample and sparked fermentation;
• in addition to accidental contamination, the subject might have a bacterial or fungal infection that tainted the blood;
• an elevated blood sugar level increases the odds that microorganisms could grow and prompt fermentation to occur;
• confirmation bias if the toxicologist learns that the case involves allegations that the subject was DUI before conducting the analysis;
• errors occurring during the testing process and presentation of gas chromatography data making the BAC appear higher than it really was; and
• the margin of error inherent in blood testing.

Significant problems can occur with testing blood to determine its alcohol concentration in crime labs in Florida. Many of these problems with blood testing can lead to an artificially inflated reading, including:

• clotting;
• hemolysis; and
• hemoconcentration.

Different Circumstances Leading to a Legal Blood Test

The legal blood test cases in DUI investigations can arise in different circumstances, including:

1. The officer requests a blood test after the driver goes to the hospital, and a breath test or urine test is impossible or impractical;
2. The officer obtains hospital records through a subpoena showing a blood alcohol concentration level after an accident; or
3. The driver requests a blood test after submitting to a breath or urine test.

In most cases, the officer has no right to force a blood draw if the person refuses to test. When the officer has no other legal grounds to request the test, he might allege that the request was “consensual” because the driver agreed that the officer could take the blood.

Florida law only permits a law enforcement officer to draw blood under the following circumstances:

• Without a warrant, when the suspect voluntarily consents to the test; or
• With a warrant, but only in felony DUI cases; or
• According to a subpoena if a hospital takes the suspect’s blood after an accident and tests it for medical purposes.

At least for blood test DUI cases investigated by the Tampa Police Department, the officer that requests the blood sample will note the following information in the police report if the blood sample is obtained:

• Kit Expiration Date
• Non-Alcoholic Swab Expiration
• Place Sample Obtained
• Arm Sample Obtained From
• Time Obtained
• Name of Person Drawing Blood

Read more about a DUI pending BAC blood test results.

Free and Voluntary Consent to Blood Testing

Any consensual blood draw is highly suspect under the Fourth Amendment. As a result, the criminal defense attorney will consent to any claim that the consent given for the blood test was free and voluntary while requesting the suppression of the blood test results.

However, the Florida Supreme Court has explained that if a defendant expressly consents to a blood test, “then the blood test falls wholly outside the scope of the implied consent law.” Robertson v. State, 604 So.2d 783, 790 (Fla. 1992).

In State v. Murray, 51 So.3d 593, 594–95 (Fla. 5th DCA 2011), the court held that because the implied consent law did not apply, the troopers were not required to inform the defendant of the implied consent provisions.

When a person consents to a blood test on a free and voluntary basis when nothing indicates the consent was not voluntary, the provisions of Florida’s implied consent law do not apply.

The court must exclude a warrantless blood test unless the consent given is truly free and voluntary. Consent requires that the person has been fully informed that the implied consent law requires submission only to a breath or urine test and that the blood test is offered as an alternative.

The primary focus when determining admissibility is whether the consent was made on a knowingly and voluntary basis and not as the result of acquiescence to lawful authority. State v. Murray, 51 So.3d 593 (Fla. 5th DCA 2011); Chu v. State, 521 So.2d 330 (Fla. 4 DCA 1988).

The courts have found some circumstances where the test results might be admissible even in the absence of compliance with the implied consent law, but only if the defendant voluntarily submits to giving the sample. Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983). The burden is on the prosecution to prove by the preponderance of the evidence that consent was freely and voluntarily given. Washington v. State, 653 So.2d 362 (Fla. 1994).

The Fourth DCA rephrased the following certified question:

Under the Fourth Amendment, may a warrantless blood draw of an unconscious person, incapable of giving actual consent, be pursuant to section 316.1932(1)(c), Florida Statutes (2016)(“Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to [a blood draw and testing].”), so that an unconscious defendant can be said to have “consented” to the blood draw?”

McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018).

The McGraw Court answered this question in the affirmative after considering decisions in Minnesota, Virginia, and Colorado. The court reasoned that since Florida’s law does not impose criminal penalties, the statute does not violate the Fourth Amendment.

For an unconscious defendant, the “less intrusive alternative of a breath test” is not available, making the blood test the only option. See People v. Hyde, 393 P.3d 962 (Colo. 2017); Wolfe v. Commonwealth, 67 Va.App. 97, 793 S.E.2d 811 (2016); Vondrachek v. Comm’r of Pub. Safety, 906 N.W.2d 262 (Minn. Ct. App. 2017).

In some cases, courts have found “consent” to be insufficient. For example, when the defendant “consents” to a blood withdrawal after being improperly advised that he will lose his driver’s license if he fails to give such consent, the ensuing consent is involuntary in nature because an affirmative misrepresentation induced it. State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995); State v. Burnett, 536 So.2d 375 (Fla. 2d DCA 1988).

In State v. Demoya, 380 So.2d 505 (Fla. 3d DCA 1980), the court found that no voluntary consent to a drug test has been established when the defendant specifically gave limited consent by consenting only to a test for alcohol.

In Mcowen v. State, 14 Fla. L. Weekly 105b (Fla. 18th Jud. Cir. 2006), the Defendant’s consent to the taking of a blood sample was deemed involuntary because the trooper had told the defendant that if she did not consent, she would be arrested.

Certification of Blood Withdraw in a DUI Case

The Florida Department of Law Enforcement’s FDLE Alcohol Testing Program has developed certain forms for blood test cases. These forms include the certification of blood withdrawal form 11 (last revised on August 1, 2001).

I certify that as a physician, certified paramedic, registered nurse, licensed practical nurse, or other person authorized by a hospital to draw blood, or as a licensed clinical laboratory director, supervisor, technologist, or technician, I am authorized by 316.1932, 316.1933, 322.63, 327.352 and 327.353, Florida Statutes, to withdraw blood at the request of a law enforcement officer.

I certify that on _______, I withdrew blood from ___________ at the request of ___________.

The blood sample(s) were collected and labeled in accordance with the provisions of Rule 11D-8.012, Florida Administrative Code.

Before collecting the blood sample(s), the skin was cleansed with an antiseptic that did not contain alcohol. The blood sample(s) were collected in glass evacuation tubes that contained a preservative and an anticoagulant. Immediately after collection, the tubes were inverted several times.

The blood collection tubes were labeled with the name of the person tested, the date and time the sample(s) were collected, and the initials of the person who collected the sample(s). ____________________________________________________________

(Printed name of person withdrawing blood)

____________________________________________________________

(Title)

____________________________________________________________

(Signature)

_____________________________________________________________

(Date)

This form may also be used in administrative proceedings under s. 322.2615, Florida Statutes. This form may be forwarded to the local Bureau of Driver Improvement Office, Division of Driver Licenses, Department of Highway Safety and Motor Vehicles.

Blood Collection Kit for DUI Testing in Florida

A blood kit contains all implements and forms required for qualified persons to collect a blood alcohol sample for evidence purposes, including for a DUI investigation to determine the driver’s blood alcohol concentration or the presence of controlled substances.

It is the procedure of the Tampa Police Department and other law enforcement agencies that the Supply Section will maintain a sufficient supply of blood evidence kits.

After the blood is collected, both tubes should be filled with blood. The tubes must be inverted (not shaken) at least five times to ensure a mixture with the preservative. Failing to invert the blood vials properly is the leading cause of blood alcohol samples being rendered unsuitable for testing.

The contents of a blood collection kit must include the following items:

• Mailing Container – a cardboard container used to protect, store and transport the blood alcohol sample to a laboratory;

• Plastic Bag – The plastic kit box is placed inside the plastic bag and then inside the mailing container;

• Evidence Seals (4) – two evidence seals for the blood vials and two evidence seals for the mailer box;

• Integrity Seals (2) for the plastic kit box;

• Biohazard Label for the exterior of the mailing container;

• Absorbent Pad is placed inside the plastic kit box on top of the blood vials;

• Two 10-milliliter collection tubes – containing preservatives and anti-coagulants;

• Sterile needle and disposable holder – a sterile needle of standard size used at most hospitals and clinics;

• Antiseptic cleansing solution (non-alcoholic) – used to cleanse the area of the arm before the blood is drawn;

• Blood collection report, instruction sheet, and consent form – the blood collection report documents the date, time, and location the sample was collected; and

• Forms – the person collecting the sample and the officer observing the collection will both sign the form.

After collecting the blood sample, the arresting officer usually charges the person with DUI using a Florida Uniform Traffic Citation. On the citation, the officer will note that the DUI charge is “Pending Blood Results.”

After that, the officer must deliver, as soon as possible, the blood sample to the Evidence Control Section for refrigerated storage. The case and all evidence will be referred to the Criminal Investigations Division (CID), and a detective will be assigned to the case. The detective will forward the blood sample to FDLE for analysis and receive the results once the analysis is completed.

In some cases, the person is not immediately charged with DUI. If the blood test results come back positive for an alcohol reading over .08 or with the presence of any controlled substance, the assigned detective may file DUI charges (often called the “direct file”).

If the charges are “direct filed,” then the DUI citation will be served on the driver, and a court date will be set.

Blood Alcohol Collection Guidelines in Florida

Many law enforcement agencies provide their DUI enforcement officers with guidelines related to blood collection to determine the level of alcohol drugs present in the sample. In Florida, these guidelines usually require:

__ Implied consent was read to the subject.

__ Legal Draw

__ Consensual Draw

__ Court Ordered Draw

__ Blood Kit is Sealed.

__ Blood Kit has not expired. The expiration date is:

__ Both blood collection tubes were inspected and found in good condition. The seals appeared new with no visible cracks, holes, or flaws, and both blood collection tubes contained the preservative and anti-coagulant power inside.

__ Observed injunction site to be cleaned with a non-alcohol swab (iodine, betadine, etc.) by ______ (Collector).

__ Collection site used was new and not a preexisting IV site.

__ Observed the entire blood draw procedure and that both tubes were inverted back and forth to mix the powder with blood.

__ Took custody of the blood collection tubes and placed it

__ Blood was drawn at _________(Location) on __________(Date) at ___________(Time).

__ Ensure Specimen Collector signed label and Blood Collection Report Card.

__ One label was applied to each blood tube with two red integrity seals, placed the containers inside the plastic bags, and then secured inside the Blood Kit cardboard box.

__ Sealed box with two or more Evidence Seals and one piece of Evidence Tape.

__ Placed Blood Kit inside Evidence bag, completed the Evidence Card / Label, and completed Lab request Form for Blood Alcohol Level / Drug Screen. (Fill out the correct Lab Request and submit it at the time of collection).

__ Blood Kit was placed inside a refrigerator or other appropriate depository. The key was placed inside a lockbox.

DUI Blood Testing in Crime Labs in Florida

Florida Administrative Rule 11D–8.002(14) requires the blood tested by the Program to be “whole blood.” Whole blood is all of the blood together without any parts removed. The only approved method for blood alcohol testing under the Program is gas chromatography (GC), Fla. Admin. Code R. 11D–8.011.

As explained in Goodman v. Florida Dep’t of Law Enf’t, 43 Fla. L. Weekly S61 (Fla. Feb. 1, 2018), forensic laboratories universally use headspace GC in Florida. Under headspace GC blood testing, a blood analyst thoroughly mixes a sample before pipetting a few drops for testing. Although mixing the sample before pipetting is “good laboratory practice,” the Florida Administrative Rules do not explicitly require this action.

After the sub-sample is separated into a specialized vial, it is mixed with internal standard. The internal standard is a liquid that dilutes the blood and makes the blood alcohol results quantifiable. While the Florida Administrative Rules require adding an internal standard, the exact amount is not prescribed.

The analyst then places the prepared sample into a headspace autosampler, which heats and pressurizes the sample. The headspace autosampler causes any alcohol contained in the sample to equilibrate in the headspace above it.

That headspace gas is then pushed through a transfer line into the gas chromatograph, where the gas interacts with coated columns to give an alcohol content reading.

Toxicology Report from the Medical Examiner’s Department

In some cases involving a fatality, the Hillsborough County Medical Examiner Department will author a toxicology report on the decedent in the traffic crash after the autopsy. The Associate Medical Examiner or Assistant Chief Forensic Toxicologist will then release a toxicology report using toxicology procedures for:

• volatiles by Headspace GC for Ocular Fluid and Peripheral Blood;
• ELISA for Drugs of Abuse from Heart Blood; and
• Comprehensive Drug Screen by GCMS of Heart Blood.

In many cases, “ethanol” is detected in the blood sample and measured in g/dL. The substances are identified by matching mass spectral libraries. In some cases, further testing is conducted to identify the substances in the blood.

Can the Officer Get a Warrant for Blood in a Misdemeanor DUI Case?

Section 933.02, F.S., which governs the grounds for issuance of a search warrant, does not authorize a search warrant to obtain blood evidence in a misdemeanor DUI case; however, this section does provide that a search warrant may be issued:

• When any property has been used as a means to commit a crime; or
• If any property constitutes evidence relevant to proving that a felony has been committed.

Florida case law has interpreted this provision to authorize a search warrant to obtain blood evidence in felony DUI cases. In State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011), the Fifth District Court of Appeal held that the statute governing search warrants, s. 933.02, F.S., precluded a law enforcement officer from securing a blood draw warrant for a misdemeanor DUI. Id. at 650.

As explained by the court, s. 933.02(2)(a), F.S., establishes the grounds for issuing a search warrant, providing that a search warrant may be issued when “any property” has been “used as a means to commit any crime.”

Section 933.02(3), F.S., authorizes the State Attorney’s Office to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.”

The court noted that “blood is not ‘used as a means to commit’ driving under the influence. Instead, blood is seized for its evidentiary value.” The court then found that the blood test results should not have been suppressed because of the good faith exception to the warrant requirement. Id. at 651.

Additional Resources

Requirements for DUI Blood Tests in Florida – Visit the Florida Office of the Attorney General website to find an Advisory Legal Opinion, AGO 2006-02, dated on January 25, 2006. The opinion addresses the issue of whether an ambulance or “Advance Life Support Pumper or Engine,” which is permitted by the Bureau of Emergency Medical Services as an “Advance Life Support Non-transport vehicle,” complies with the statutory requirement of “other medical facility” in section 316.1932(1)(c), Florida Statutes, which has been expanded to include ambulance or other medical emergency vehicles.

Finding an Attorney for a Blood Test DUI Case

After an arrest for DUI in a case involving a blood test in or around Tampa or Plant City in Hillsborough County, FL, call us at (813) 250-0500 to discuss your case.

Leslie Sammis has been fighting DUI cases, including cases involving legal or hospital blood, for more than twenty (20) years. She has filed and litigated complicated motions to suppress in and around Tampa and Plant City in Hillsborough County, FL, in DUI blood test cases involving a legal or medical blood draw.

Our DUI attorneys are experienced in fighting for the absolute best result and exclude the result of any blood test in the case.

Find out how we fight to exclude the chemical test results at trial. We also have a second office for DUI cases in New Port Richey, FL, in Pasco County. Our New Port Richey office is located directly across from the West Pasco Judicial Center.

We also represent clients charged with driving under the influence and DUI causing property damage or bodily injury throughout the greater Tampa Bay area, including St. Petersburg and Clearwater in Pinellas County, New Port Richey and Dade City in Pasco County, Lakeland, and Bartow in Polk County and Brooksville in Hernando County, FL.

This article was last updated on Tuesday, April 25, 2023.