On June 23, 2016 the United States Supreme Court outlawed warrantless blood tests incident to arrest for DUI. In Birchfield v. North Dakota, 579 U.S. (2016), the Supreme Court stated, “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” Id. at 35. Blood tests are intrusive, in that they involve actually puncturing the skin and produce a sample which can provide significantly more information than a breath test. Breath tests, on the other hand, simply require a person to blow into a tube, just like they would blow up a balloon. Also, people do not necessarily have a privacy interest in breath that they have exhaled. The court concluded that breath tests are acceptable searches incident to an arrest for DUI without a warrant. However, a warrant is required in order for a blood test to be legal. However, “Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not.” Id. at 34. Additionally, a person may not be charged with a crime for refusing to submit to a blood test, and states cannot require a person to submit to a blood test as part of the “implied consent.”
The 4th Amendment to the United States Constitution protects us from unreasonable searches and seizures, and specifically states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” There are exceptions to the warrant requirement, and a search incident to arrest is one such exception. However, the Court still must determine the reasonableness of the search. In the case of blood draws incident to arrest for DUI, the Supreme Court has determined that it is unreasonable.
So what does this mean? It means that it is now illegal for a police officer to request a blood test when an arrest for DUI is made. Florida Statute 316.1932(c) states Florida’s current requirements for the administration of blood tests incident to an arrest for DUI. After this recent Supreme Court decision, it would appear that in order to legally obtain a blood draw, the police officer must request permission from a judge, who must review the facts and determine whether there is probable cause to issue a warrant. Only after a warrant is issued, may a lawful blood test be performed. When arrested for DUI, a person cannot be compelled to give a blood sample without a warrant, and cannot be charged with a crime for refusing to provide a blood sample.