Both Ryan Simmons and Joshua McKinnon were arrested last year for driving under the influence and were asked to submit to a breath test to determine their blood alcohol content. After their refusal, police officers received the permission of a county judge to issue warrants to allow them to draw the men's blood. At issue in both appeals is whether the results of the blood test should have been suppressed during their trials. In part one of this article we will examine the relevant Florida law concerning when roadside blood testing is admissible in court.
Under Florida law, it is not a crime for a person to refuse to submit to a breath, blood, or urine test after his first DUI arrest, but his refusal can be used against him in court as evidence of their guilt. Refusal itself is only a crime after a person has already been convicted of a DUI or has already had a prior refusal. People who refuse DUI tests are nonetheless subject to the civil penalty of having their licenses suspended for up to a year after a first refusal and having their licenses suspended for 18 months after a second refusal. A person asked to submit to a test to determine their level of intoxication generally has the right to determine whether the officer performs a breath test, a blood test, or a urine test. Most people who decide to submit to a test will choose a breath test because it is generally less intrusive and less time consuming than the other tests. Additionally, many people are not aware of their right to choose which test they have to perform. In Florida, the forcible withdrawal of a person's blood against his will is only permitted in the cases of a DUI resulting in serious bodily injury or death or where the driver is unconscious and therefore has not withdrawn his implied consent to a blood test. In part two of this article we will discuss the various challenges of these forcible blood tests in court.
