Exigent Circumstances for a Warrantless Blood Draw

When a blood sample is taken from a DUI suspect, the seizure is only valid under the Fourth Amendment if there either:

  • a valid search warrant that first authorized the taking of the blood;
  • free and voluntary consent; or
  • exigent circumstances.

This article focused on when exigent circumstances allowed a forced blood draw. In DUI manslaughter cases in Florida, no other issue is more frequently litigated, often resulting in a victory for the defense. The failure to file and litigate such a motion might constitute ineffective assistance of counsel if a Rule 3.850 motion is filed within two years of the conviction becoming final.

These battles to exclude the blood headed up after the United States Supreme Court’s decision in In Missouri v. McNeely, 569 U.S. 141, 152 (2013). The McNeely case set forth a clear rule:

“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

In State v. Liles, 191 So. 3d 484, 486 (Fla. 5th DCA 2016), the court confirmed that McNeely and earlier federal and Florida cases made it clear:

“[t]o comply with the Fourth Amendment, law enforcement officers must obtain a warrant or consent for a blood draw, or there must be some other exception to the warrant requirement.”

One such exception to the warrant requirement is “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” McNeely, 569 U.S. 6 at 148–49 (internal quotation marks omitted).

The McNeely case should have created a sea change in how Florida officers investigate DUI-related cases. Nevertheless, many Florida law enforcement agencies, prosecutors, and judges were reluctant to make the changes necessary to obtain warrants promptly.

The decision not to obtain a warrant before forcing a blood draw often results in a long and complicated motion hearing. During that motion hearing to suppress the blood, the prosecutor must prove that exigent circumstances existed.

Attorney for DUI Blood Draw Cases in Florida

The attorneys at Sammis Law Firm represent clients in Felony DUI cases, including DUI manslaughter cases involving a forced blood draw by the police. If a law enforcement officer caused legal blood to be taken without a warrant or consent, they might claim that the exigent circumstances exception to the warrant requirement existed.

We can file and litigate a motion to suppress the forced blood draw and show why the state cannot meet its burden in showing exigent circumstances existed. Winning the motion might result in all charges being dropped or dismissed.

Our main office is located in downtown Tampa. We also have offices in Clearwater and New Port Richey, FL.

Call 813-250-0500.

Whether Exigent Circumstances Justify a Warrantless Blood Draw

At the hearing on a motion to suppress the blood, the courts often consider whether:

  • a crash occurred;
  • whether anyone was injured in the crash;
  • delays to the investigation caused by medical care being provided at the crash scene to those injured;
  • the number of law enforcement officers that arrived at the scene;
  • decisions made by law enforcement officers at the scene, including any traffic homicide investigators; and
  • how modern technologies were used to prepare the search warrant application and request that a judge sign it.

The court will consider when the officers became aware that a forensic blood draw would be required and whether officers made attempts to contact the on-call assistant State Attorney or find out which judge might be available to review the warrant application.

The court will consider how much longer the blood draw would have been delayed had the officers waited for a search warrant that would have authorized the blood draw.

Two statutes might justify a forced blood draw. Section 316.1933(1)(a), provides:

If a law enforcement officer has probable cause to believe that a motor vehicle driven by . . . a person under the influence of alcoholic beverages [or] any chemical substances . . . has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving . . . 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 . . . . 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.

The State must prove that the exigent circumstances exception applies by clear and convincing evidence. Liles, 191 So. 3d at 486.

The courts now reject arguments based on per se exigencies because of how the body naturally metabolizes alcohol in the body which necessarily results in the dissipation of critical evidence over time. McNeely, 569 U.S. at 146, 156. In McNeely, the Supreme Court recognized that “exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.” Id. at 156.

Nevertheless, the Court required that “[w]hether a warrantless blood test of a drunk driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id.

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