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In numerous DUI cases and BUI cases, law enforcement officers will request that the driver or operator undergo a blood test to determine their Blood Alcohol Content (BAC). These blood tests, conducted in by the FDLE or local Fort Lauderdale area crime labs, can also detect the presence of drugs.

When properly administered, blood tests are generally considered the most accurate and reliable method for measuring BAC or identifying specific drugs. Despite their accuracy, issues can still arise with blood testing. Presence of controlled substances or their metabolites in the blood rarely indicate current psychoactive  compounds, nor can their presence be directly tied to impairment in many cases. 

The positive aspect of blood tests is that your attorney has the option to request a portion of the sample for an independent test. In many instances, the results of the independent test differ significantly from those obtained by the crime lab at the Florida Department of Law Enforcement (FDLE) or a local crime lab, calling their results into question.

At The Law Office of Sean Clayton, PA, our dedicated team of attorneys specializes in providing vigorous defense for DUI cases in Fort Lauderdale, Miami, and West Palm Beach. Our primary objective is to achieve the best possible outcomes for our clients, often resulting in complete dismissal of charges or reduction to the lesser offense of reckless driving.

Additionally, we offer invaluable guidance to our clients throughout the administrative proceedings with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). Our advice includes strategic approaches that may enhance their chances of a favorable resolution. Ultimately, our goal is to assist clients in minimizing the long-term consequences associated with a DUI charge.

Following a DUI with property damage arrest in Fort Lauderdale or anywhere in South Florida, you will encounter two distinct cases. First, there is the administrative case with the DHSMV, which focuses on the suspension of your driver’s license. The second is the criminal case which unfolds in the courts. Our experienced DUI lawyers handle both types of cases across South Florida and can provide expert guidance on the best course of action for your situation.

We strongly encourage anyone accused of DUI with property damage to consult with an attorney early in the process. For assistance in selecting the right attorney, consider reviewing our  Tips for Selecting a DUI Attorney. 

In cases involving blood test results, we usually receive results from one of two sources. The first is a blood draw at the request of law enforcement.  The second is medical test results, often obtained by warrant. 

Under Florida law, police may request a blood test in one of four scenarios:

• Implied Consent Law: If a DUI suspect appears for treatment at a hospital, clinic, or other medical facility, and the administration of a breath or urine test is impractical or impossible, police may request a blood test.
• Involvement in a Crash Causing Serious Injury or Death: If a DUI suspect was involved in a motor vehicle crash and is determined to have caused death or serious bodily injury, police can obtain a blood sample. In such cases, blood testing may be compelled, even through the use of 'reasonable force’. However, the police must seek a warrant unless exigent circumstances exist.
• Voluntary Consent: Police may obtain a blood sample from a DUI suspect based on voluntary consent.

It’s essential to note that strict procedures must be followed during blood testing, including proper extraction, labeling, storage, transport, and testing of the sample. Even minor non-compliance can affect the validity of the blood result in court. For example, for a law enforcement blood draw, the blood must be taken by 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..."

By comparison, medical test results are those conducted during treatment at a medical facility, usually following a crash. It may surprise people to learn that medical staff can legally law enforcement if these tests contained alcohol or controlled substances. This, or other observations, may lead to law enforcement seeking a warrant for the records. 

When they seek the medical test results, the accused will generally receive notice of the State's intent to issue a warrant. If you receive this letter, you only have 15 days to object and request a hearing. These hearings are called "Hunter Hearings," after the case of Hunter v. State, 639 So.2d 72, 74 (Fla. 5th DCA 1994). You have a fundamental right to privacy that typically safeguards the confidentiality of your hospital and medical records. When the state attempts to bypass this right to privacy, it bears a substantial burden of demonstrating the necessity for accessing those records during a hearing.

However, the Hunter Hearing to challenge the subpoena of medical records is only mandatory if you file a written objection with the State Attorney’s Office after receiving notice of their intention to seek the records through a subpoena duces tecum.

By contesting the subpoena and submitting a written objection, you may persuade the court to prevent the State Attorney’s Office from issuing the subpoena. Preventing the issuance of a subpoena for medical records could be the most effective way to halt the investigation, avoid an arrest, and evade prosecution for a DUI-related offense.

In rare instances, Florida prosecutors may act as a “one-man grand jury” and use the vast power granted in Fla. Stat. § 27.04 to subpoena witnesses and records. 

Fla. Stat. §§ 395.3025(4)(d) and 456.057(7)(a)3 provide that, before exercising the one-man grand jury power to obtain such records, a Florida prosecutor must give notice to the real party in interest as to the records, and afford them a chance to seek a hearing.

Keep in mind, however, that Florida law also provides that prosecutors can simply seek a search warrant on an ex parte basis for the hospital or medical records at issue. The courts have held that prosecutors may skip the statutory procedures and simply seek a search warrant on an ex parte basis for the hospital or medical records. 

In Missouri v. McNeely, the United States Supreme Court made a significant ruling regarding blood draws in DUI cases. Tyler McNeely was stopped for speeding and crossing the centerline. When asked to take a breath test to measure his blood alcohol concentration (BAC), he declined. He was subsequently arrested and taken to a hospital. The arresting officer did not attempt to secure a search warrant before ordering a blood sample. Despite McNeely’s refusal to consent, the officer directed a lab technician to take the sample. McNeely’s BAC tested above the legal limit, and he was charged with driving while intoxicated.

The trial court suppressed the test result, ruling that the exigency exception to the warrant requirement did not apply. The court found that no emergency circumstances justified the warrantless blood draw.

Both the Missouri Supreme Court and the U.S. Supreme Court affirmed this decision.

The Supreme Court looked at the “totality of circumstances” and declined to announce a per se rule. When officers in drunk-driving investigations can reasonably obtain a warrant before drawing blood without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Blood testing is different from other destruction-of-evidence cases. Blood-alcohol evidence naturally dissipates in a gradual and relatively predictable manner. An officer must typically obtain a trained medical professional’s assistance before conducting a blood test, which inherently introduces some delay between arrest and testing, regardless of whether a warrant is obtained.

In Florida, Missouri v. McNeely has led to a case-by-case review of nonconsensual DUI blood draws. The courts have established that the natural dissipation of alcohol in the bloodstream does not automatically constitute an exigency justifying a warrantless blood test. These decisions emphasize that obtaining a warrant is generally required unless specific circumstances make it impractical. As a result, Florida law now evaluates DUI blood draws on a case-by-case basis, considering factors beyond mere dissipation of blood-alcohol levels.

The law enforcement officer will typically obtain an approved blood test kit to perform a blood draw. Only certain qualified individuals are typically permitted to draw the blood sample. Often, DUI lawyers call the person who conducts the blood draw the "vamp" (short for vampire). Qualified persons can be 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.

In most DUI cases in Florida that involves a blood test, the law enforcement officer will process the blood in specific steps. The law enforcement officer should witness the blood being drawn. If the officer does not witness the blood being drawn, it complicates the chain of evidence issues for the prosecutor at trial. The officer usually will follow these steps:

• Prior to administration, the tubes should be inspected to ensure they have the proper preservatives and anti-coagulants;
• The blood draw must be performed by specific, qualified individuals;
• The officer should follow the manufacturer’s instructions;
• The blood specimen container should be sealed with evidence tape;
• The Florida law enforcement officer should sign and date the chain of the custody request form;
• The Florida law enforcement officer should place the specimen bottle and original copy of the chain of custody form in a sealed evidence bag which is marked with a biohazard label;
• The marked and sealed sample should be sent to the property evidence room, where the officer is typically required to:
• Place the blood sample in an individual compartment of an approved refrigerator;
• Close and lock the compartment;
• Place the property receipt in the property evidence chute;
• The person drawing the blood should complete the Certificate of Blood Withdrawal form, which the law enforcement officer should then attach to the administrative packet.

Failure of the officer to comply with these steps may result in suppression of blood test results in your DUI case. Suppression often leads to reduced charges or, sometimes, to cases being completely dropped.