Nevada SC strikes down DUI implied consent lawhttps://secureservercdn.net/184.108.40.206/1a5.770.myftpupload.com/wp-content/themes/osmosis/images/empty/thumbnail.jpg 150 150 Joel Leppard Joel Leppard https://secure.gravatar.com/avatar/4de5a5d3898121729a83f9e413ca7894?s=96&d=mm&r=g
Last week, the Nevada Supreme Court ruled [opinion, PDF] that Nevada’s implied consent law, which allows police officers to take blood samples of motorists to determine impairment, is unconstitutional under the 4th Amendment. It’s ruling relied on the US SC decision in Missouri v. McNeely [SCOTUS blog background] which held that the fourth amendment may require a warrant [JURIST report] for a blood test in a drunk-driving investigation.
Florida Implications: The Nevada SC and SCOTUS cases seem to have two implications. First, warrantless blood draws in felony bodily injury cases might be subject to suppression if the State cannot demonstrate that obtaining a warrant would significantly undermine the efficacy of test of the blood draw. Florida Statutes, Section 316.1933(1), permits forcible warrantless extraction of a blood sample if the officer has “reasonably trustworthy information,” sufficient to cause a person of reasonable caution to believe that a driver was under the influence of alcoholic beverages at the time of an accident causing death or serious bodily injury of a human being, even if the only one injured is the driver. The holding in McNeely provides that there can be no per se exigency exception to the warrantless blood draw and thus these blood draws may be ripe for a factually intensive MTS to determine if police could have obtained a warrant. However, note that at least one circuit court has denied a MTS on the specific facts of the case. In contrast to felony DUI blood draws, MM warrantless involuntary blood draws are invalid, as the Fifth district held that Section 933.02 Florida Statues precludes police from securing a warrant for a DUI blood draw in MM DUIs. State v. Geiss, (Fla. 5th DCA 2011). (However, consensual voluntary blood draws would still be admissible, see e.g. State v. Slaney, 653 So. 2d 422, 427 (Fla. 3rd 1995)).
Second, Florida’s implied consent for blood draws might not be constitutional. Law enforcement can ask for a blood draw when a breath/urine sample is “impracticable ” under implied consent; a driver can refuse but is subject to DL suspension/penalties. See section 316.1932(1)(c). It stands to reason that if a request for blood draw cannot be compelled under the 4th amendment, then Florida’s implied consent law which provides for penalties for a refusal might be suspect under McNeely. (This is basically what the NV SC held.) There do not appear to be any Florida cases on point yet.
If you have a warrantless blood draw case, you may want to read this excellent 36 page legal brief discussing the Florida implications for blood draws: “A COMPREHENSIVE ANALYSIS OF THE IMPACT OF MISSOURI v. McNEELY ON FLORIDA DUI PROCEDURES” available here: http://goo.gl/bWr829.
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