Is Florida Statute Section 316.1933 Unconstitutional?

Florida Statute Section 316.1933 is silent as to whether a warrant is required for a forced blood draw. The statute does however, say that the blood test must be “reasonable.” This reasonableness requirement expressed in Florida Statute Section 316.1933 could be read as a recognition that the forced taking of blood on a pre-arrest basis must still comply with one of the exceptions to the Fourth Amendment when a warrant is not secured.

To the extent that the courts in Florida do not read a warrant requirement into the statute, then the statute is unconstitutional on its face.

It is important to note that Section 316.1933 is not part of Florida’s implied consent law. In fact, that statute does not even mention the word consent. This fact seems to be ignored due to older case law interpreting the pre 2002 amended version of Fla. Stat. 316.1933 which was expressly part of the implied consent law.

Today, Fla. Stats. 316.1932(1)(a)1a, 316.1932(1)(a)1b, 316.1932(1)(c), and 316.1932(1)(e) clearly set forth what is covered by Florida’s implied consent law. While previous versions of Fla. Stat. 316.1933 were part of implied consent and in fact contained the word “consent,” the new version does not.

Prior to July 1, 2002 Fla. Stat. 316.1933(1) required that a person “shall submit, upon the request of a law enforcement officer, to a test of the person’s blood . . .” if the officer had probable cause to believe that the defendant had driven a vehicle while under the influence of alcohol or drugs and caused the death or serious bodily injury of a human being. However, Laws of Florida Chapter 2002-263 (the result of the passage of the C.S.C.S.H.B. 1057) altered the state of affairs and now no longer directs that a person shall submit to a blood test.

After July 1, 2002, the statute purported to authorize a law enforcement officer to require a person to submit to a test by reasonable force if necessary. In amending the statute, the legislature appears to have misinterpreted Schmerber v. California, 384 U.S. 757 (1966), as equating the dissipation of alcohol with exigent circumstances even through Missouri v. McNeely shows that interpretation is absolutely wrong.

Now that the McNeely decision has exposed that flaw, it is clear that Section 316.1933 is unconstitutional to the extent it is does not require a case by case determination of exigency under the traditional standard. The statute is unconstitutional by failing to require the existence of an exigency before allowing officer to order a forced blood draw.

Thus, to the extent that Florida Statute Section 316.1933 can be read to authorize a forced blood draw without exigent circumstances, then it is unconstitutional on its face. The statute is unconstitutional to the extent it purports to either be an exception to or trump the Fourth Amendment’s warrant requirement because it violates his right to be free from unreasonable search and seizures. See Missouri v. McNeely, 133 S. Ct. 1552 (2013).

The attorneys at the Sammis Law Firm represent clients on felony DUI charges for serious bodily injury or death in the City of Tampa and throughout Hillsborough County and the surrounding areas throughout the greater Tampa Bay area of Florida.


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