Criminal Defense LawyerLakeland, Tampa, FL

Blood draws in DUI - Driving Under the Influence criminal cases in Polk County, FL

Today, the United States Supreme Court will hear oral argument whether Forced blood draws in DUI cases are constitutional.  The DUI case the Supreme Court is hearing started when a driver was pulled over for speeding.  As usual, it's late at night and the trooper gives the standard odor of alcohol, glassy, bloodshot eyes observed so he starts a DUI investigation.  Of course, these observations also mean that a driver has to get home to use the bathroom and just came from a smoky bar and had one drink which is NOT a DUI.  There was also allegedly slurred speech, but I have represented countless people arrested for driving under the influence and when I watch their DUI arrest, there is NO slurred speech.  The law enforcement officer arrested the driver for DUI after the suspected drunk driver failed the battery of field sobriety exercises.  In Florida this consists of the Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One Leg Stand.  Experienced DUI attorneys call them field sobriety exercises (FSE's) while police call them field sobriety tests (FST's).  Why do DUI police officers do this? To try and attach some kind of credibility to the roadside exercise, but the FSE's are junk science.  A jury is never instructed about field sobriety exercise by the judge before deliberations on a DUI criminal case.  The suspected DUI driver allegedly failed the field sobriety tests and was arrested.  At the police station, the driver was asked to take a breath test.  In Florida, the Polk County Sheriff, Bartow Police Department, Florida Highway Patrol, and Lakeland Police Department all use the Intoxilyzer 8000 breath test machine.  Law enforcement and prosecutors like to call it a breath test instrument in a feeble attempt to give this machine credibility for a criminal court and jury.  There are many problems with these breath test machines.  The suspected impaired driver refused to take a breath test after his DUI arrest.  In Polk County and Florida, you must be placed under arrest for DUI before the cops can request a breath test on the Intoxilyzer breath test machine.  The trooper then took the driver to the hospital for a blood draw to determine the alcoholic content of his blood.  In Polk County and Florida, the legal limit is 0.08%.  In Florida, the only time the police can order your blood drawn in a DUI case is if there is a DUI suspected and serious bodily injury or death involved, or a breath test is impossible or impractical.  In the case before the U.S. Supreme Court, the suspected drunk driver's blood test results were 0.154% which is almost twice the legal limit.  The driver filed a Motion to Suppress the blood test results on the grounds that the blood draw violated his constitutional rights and constituted an unreasonable search and seizure in violation of his 4th Amendment rights.  The prosecutor argued that because of exigent circumstance the police and DUI officer had a right to take the driver's blood sample.  The exigent circumstances being that the alcohol was dissipating and metabolizing in his system and the evidence (the alcohol) is being eliminated.  The U.S. Supreme Court previously ruled in Schmerber v. California,  that a nonconsensual, warrantless blood draw was permissible if exigent circumstances existed, there was probable cause for DUI, and the blood draw was performed in a reasonable manner. The trial court disagreed with the prosecutor and police and excluded the blood test results. Eventually the case went to the appellate court which ruled that just because alcohol is being metabolized in a DUI suspect's system, that does not automatically mean that exigent circumstances exist.  You can always obtain a warrant and draw the blood.  Currently in Florida, courts hold that up to 4 hours is a reasonable time to give a breath test to a DUI suspect.  This meant that law enforcement must get a warrant before conducting a blood draw to determine the alcohol content of the suspected driver.  The prosecutor, police, trooper, and sheriff did not like this ruling as they want as much evidence of the crime of DUI as they can get for court, so the case was appealed to the U.S. Supreme Court.
The question before the U.S. Supreme Court for is: “Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.”
Schmerber was the U.S. Supreme Court’s last decision regarding the Fourth Amendment’s scope in protecting DUI suspects against nonconsensual, warrantless blood withdrawals.  The court will be reviewing that decision and deciding how it applies to DUI arrests everyday.  The court's decision will be binding on Florida and Polk County's DUI courts.  the case will determine law enforcement's and prosecutor's powers in performing blood-evidence searches in DUI cases.
If you have been arrested for DUI, DUI with Property Damage, DUI with Serious Bodily Injury, or DUI Manslaughter in Polk County or Florida call an experienced DUI attorney today to protect your rights.
Call and talk to Thomas C. Grajek, an experienced DUI trial lawyer in Polk County willing to fight for you in court today!



Aggressive DUI attorney handling all DUI arrests in Florida and Polk County, Florida including Bartow, Lakeland, Winter Haven, Mulberry, Haines City, Auburndale, and Lake Wales.

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