Administrative Suspensions in Blood Cases
This article is to explain the issues when a driver receives an administrative suspension after an arrest for DUI involving a blood test. The purpose of this article is to explain:
- the statutes that deal with Implied Consent;
- the requirements for a voluntary blood draw;
- the requirements for a mandatory blood draw; and
- the definition of serious bodily injury
The arresting officer is trained to submit the following items in a blood case:
- The Citation
- The Refusal Affidavit – HSMV Form #78054
- Blood Alcohol Analyses Affidavit – FDLE Form #15
- Officer’s Probable Cause Affidavit
- Post Dated Suspension Order – (Unless the correct citation was issued and personally served to the driver by the officer)
Florida Statute Section 316.1932 Prerequisites
MUST GO TO A MEDICAL FACILITY for treatment and not be able to take a breath test or a breath test is impractical. If the driver is not injured – he does not satisfy this requirement. An ambulance is considered an emergency facility. A patrol car is not.
A BREATH TEST WOULD NOT BE PRACTICAL:
If someone has the roof of their mouth missing, a tracheotomy or any impairment that would allow air to escape from their nose or mouth while attempting to take a breath test.
Administrative Suspensions for Blood Test Refusals
The requirements for a blood test refusal under 316.1932(1)(C) include the following pre-conditions:
- the driver appears at a medical facility;
- the breath test is impractical/impossible;
- the officer has reasonable cause to believe that the person was in actual physical control or driving—cues of DUI;
- reasonable cause is a lower threshold (not the same as probable cause);
- Suspicion – examples:
- Open beer cans, odor of alcohol, etc.
- Remember meaning of a medical facility;
- THE DRIVER MUST BE AWAKE AND COHERENT TO REFUSE A BLOOD TEST UNDER THESE CIRCUMSTANCES;
- The hearing officer must determine this in the formal review;
- Driver may refuse test;
- Must be under lawful arrest; and
- Officer may not use reasonable force.
Section 316.1933 SERIOUS BODILY INJURY
Under Section 316.1933, if blood is taken without consent then the evidence must show:
- MUST HAVE:
- Probable cause to believe the person is under the influence.
- A crash involved serious bodily injury or death to any person (including the driver).
- Under Florida law, the definition of “serious bodily injury” is the “loss of an organ or body part, major injury to an organ, injury to the eyes, internal injuries, loss of a limb, a concussion.”
- The driver does not have the right to refuse the test.
- Officer may use reasonable force.
- Does not require a lawful arrest.
- State of Florida v. Banoub, 22 Fla. L. Weekly D2104 (Fla. 2nd DCA)
- Criminal Law – Driving Under the Influence –Evidence – Blood Alcohol Test – Delay
- Reasonableness: The court concluded that the delay of approximately (4) hours between the driving and the testing in this case is not unreasonable. Support for this conclusion can be found in the manner in which alcohol is metabolized by the body as explained in Banoub.
This article was last updated on Monday, August 20, 2018.