Recently, we have had success in local DUI cases by challenging the admissibility of breath or blood testing results. One way to attack these tests is to first determine if the test was administered involuntarily.If so, you may have a legal pathway to getting this evidence suppressed.
This is especially common in DUI cases that stem from an automobile accident. It is officially called DUI with Property Damage.
Single car accidents are generally charged as misdemeanors. The legal argument begins by asserting that the Defendant’s blood draw at the scene was involuntary and done so without probable cause. Several factors may support this conclusion and may include:
a. The Defendant was not arrested at the scene.
b. The arrest warrant was not requested by the Officer until the blood testing results were received.
c. The Officer may concede in the report that probable cause was not determined until after the blood testing results were received.
We then assert that not only is probable cause required before law enforcement can justify an involuntary blood draw, it is also necessary that the criminal investigation support a felony charge (with death or serious bodily injury of a human being).
Additionally, even if law enforcement believed that probable cause existed at the time of the involuntary blood draw, since Defendant is charged with a misdemeanor DUI, law enforcement cannot assert exigent circumstances to justify the involuntary blood draw because the exigent circumstances exception only applies to felonies. See State v. Perez, 531 So.2d 961 (Fla. 1988); State v. Schreiber, 835 So.2d 344 (Fla. 4th DCA 2003); See also Missouri v. McNeely, 133 S. Ct. 1552 (2013).
In filing the Motion to Suppress, we also cite to Article I, Section 12 of the Florida Constitution, the Fourth and Fourteenth Amendments to the U.S. Constitution, and Rule 3.190(h) and (i) of Florida’s Rules of Criminal Procedure.
In the Motion, we specifically ask the Court to suppress any and all tangible evidence, specifically, blood testing results, and any other evidence obtained in the case-obtained from the illegal blood draw.
Properly utilizing these technical defenses are critical to our success, especially on DUIs. So when you look to hire a criminal defense attorney to handle your legal matters, make sure that they have the experience and knowledge base to handle every type of criminal law issue.
If you need assistance, call Lupella & Rehr – the call is free.