|Florida DUI Blood Test|
DUI Attorney / Lawyer notes a License Suspension was overturned – that while Refusal to submit to blood test can be used by the Department of Highway Safety and Motor Vehicles to sustain a Driver’s License Suspension, One court just ruled that the mere appearance of a driver at a hospital emergency room is insufficient to establish that a DUI breath test was impracticable or impossible. The court overturned an Administrative license suspension when the appeals court ruled it was Error to sustain a suspension for refusal of blood test. The Circuit Court found there was no competent substantial evidence that administration of a breath test to driver who was transported to hospital after crash and then cleared for entrance into jail was impracticable or impossible.
Doran’s driver’s license was suspended for refusing to submit to a blood test to determine his blood alcohol content. Florida Statute section 316.1932(1)(c) (hereinafter, the Implied Consent Law) provides, in pertinent part:
Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital . . . and the administration of a breath or urine test is impractical or impossible.
§ 316.1932, Fla. Stat. (2011) (emphasis added). The Department argues that the mere fact that Doran was at the hospital rendered a breath test impractical or impossible, however, the Implied Consent Law clearly requires a showing that a breath test was impractical or impossible in addition to the person’s appearance at a hospital.
There is no competent, substantial evidence in the record that a breath test was impracticable or impossible. Officer Owen’s Probable Cause Affidavit simply states that he requested the blood test at the hospital, but does not provide any details indicating that a breath test was impractical or impossible. For example, Officer Owens did not state that Mr. Doran was awaiting treatment, that he was unconscious, or that he was strapped to a gurney when he requested the blood test. See, e.g., State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2309f] (finding that a breath or urine test was impractical or impossible to administer because defendant was unconscious at the hospital). As Doran’s mere appearance at the hospital is insufficient to establish that a breath test was impracticable or impossible, the Petition for Writ of Certiorari is hereby GRANTED and the order of suspension is QUASHED.
Source FLWSUPP 1901DORA
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