actual physical control, §316.1932(1)(c), Blood Draw, Motion to Suppress, Serious Bodily Injury

Blood Results Thrown Out | No Actual Physical Control

Blood Draw DUI
Florida DUI Attorney / Lawyer and Board Certified Criminal Defense Expert has been researching a matter in a DUI Serious Bodily Injury and Leaving the Scene of an Accident with Serious Bodily Injury case and uncovered a recent ruling in a Driving under influence prosecution. The case dealt with Evidence in the form of a Forced blood draw. The Defendant had a head wound and was found lying on the ground beside of a crashed vehicle. The court ruled a forced blood draw was not permitted under the Florida Statute that authorized blood draws when there was reasonable cause to believe person was DUI, appeared at medical facility for treatment and the administration of a breath or urine test was impractical or impossible, or the person was incapable of refusal.
The court noted that where the only indicia that defendant was DUI, was an odor of alcohol, a Forced blood draw would not be permitted. Notably, the officer’s decision to have blood drawn was result of police department policy to treat all head wounds as serious bodily injury.
Actual Physical Control APC was not established where there was no independent evidence that the defendant was in actual physical control of vehicle at time of the accident. The defendant was found on the passenger side of a vehicle, the passenger side windshield was cracked, and the vehicle was not registered to the defendant. The court found the Motion to suppress the Blood results should be and was granted.

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Case Excerpts:
“Forced blood draws pursuant to §316.1932(1)(c), do not require an accident and are permitted only when: (a) an officer has reasonable cause to believe the person was driving under the influence of alcoholic beverages or chemical or controlled substances; (b) the person appears for treatment at a hospital, clinic or medical facility, and (c) the administration of a breath or urine test is impractical or impossible or the person is incapable of refusal due to unconsciousness or other mental or physical condition. Kliphouse, 771 So.2d at 18, 19.”
“Other cases of note regarding issues presented in this case are Esler v. State, 915 So.2d 637, 640 (2nd DCA 2005) which held, “There can be no conviction for DUI with serious bodily injury without proof that the defendant was driving a vehicle and was impaired at the time of the crash.””
“State v. Law, 559 So2d 187, 188 (Fla. 1989), held that “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” See also, Lukas v. State, 627 So.2d 123 (5th DCA 1993).”
“There was no eyewitness to the accident and no other evidence which indicated Defendant as the driver of the vehicle. The car was not registered in Defendant’s name and the Officer’s investigation did not include contacting the vehicle’s listed owner.”
Source: 17 Fla. L. Weekly Supp. 285a


DUI Blood Draw | Actual Physical Control