blood alcohol test in Florida

2011Id. at 770-71 , 86 S.Ct. 1826 ; see also State v. Bender, 382 So.2d 697, 698 (Fla.1980) ("There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established."); State v. Mitchell, 245 So.2d 618 (Fla.1971) (recognizing Schmerber as the law of the land), receded from on other grounds in Brackin v. Boles, 452 So.2d 540 (Fla.1984); State v. McInnis, 581 So.2d 1370, 1373 (Fla. 5th DCA 1991) (noting no Fourth Amendment right not to have blood drawn for testing); State v. Hilton, 498 So.2d 698, 699 (Fla. 5th DCA 1986) (same); State v. W

2011Id. at 770-71 , 86 S.Ct. 1826 ; see also State v. Bender, 382 So.2d 697, 698 (Fla.1980) ("There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established."); State v. Mitchell, 245 So.2d 618 (Fla.1971) (recognizing Schmerber as the law of the land), receded from on other grounds in Brackin v. Boles, 452 So.2d 540 (Fla.1984); State v. McInnis, 581 So.2d 1370, 1373 (Fla. 5th DCA 1991) (noting no Fourth Amendment right not to have blood drawn for testing); State v. Hilton, 498 So.2d 698, 699 (Fla. 5th DCA 1986) (same); State v. W

2011Id. at 770-71 , 86 S.Ct. 1826 ; see also State v. Bender, 382 So.2d 697, 698 (Fla.1980) (“There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established.”); State v. Mitchell, 245 So.2d 618 (Fla.1971) (recognizing Sehmerber as the law of the land), receded from on other grounds in Brackin v. Boles, 452 So.2d 540 (Fla.1984); State v. McInnis, 581 So.2d 1370, 1373 (Fla. 5th DCA 1991) (noting no Fourth Amendment right not to have blood drawn for testing); State v. Hilton, 498 So.2d 698, 699 (Fla. 5th DCA 1986) (same); State v. W

2011Id. at 770-71 , 86 S.Ct. 1826 ; see also State v. Bender, 382 So.2d 697, 698 (Fla.1980) ("There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established."); State v. Mitchell, 245 So.2d 618 (Fla.1971) (recognizing Schmerber as the law of the land), receded from on other grounds in Brackin v. Boles, 452 So.2d 540 (Fla.1984); State v. McInnis, 581 So.2d 1370, 1373 (Fla. 5th DCA 1991) (noting no Fourth Amendment right not to have blood drawn for testing); State v. Hilton, 498 So.2d 698, 699 (Fla. 5th DCA 1986) (same); State v. W

1974In the Coffey case [State v. Coffey, Fla., 212 So.2d 632 ] supra, this Court distinguished Cooper v. State [Fla.App., 183 So.2d 269 ], a case holding blood test results inadmissible, on the grounds that the blood test in Cooper was taken by the investigating officer for the ‘declared purpose’ of completing his accident report.” The homicide investigator specifically testified that he had requested the blood alcohol test; and the accident investigator by his testimony confirmed this.

1968Petition for writ of certiorari in this cause has been granted on the ground of alleged conflict with the decision in Cooper v. State, Fla.App.1966, 183 So.2d 269 , holding that a blood alcohol test made at the request of an investigating officer is inadmissible in evidence when it can be considered “a part of the investigation for the purpose of completing the report” which is privileged under F.S.

1989Second, the Court in State v Townsend, 479 So.2d 306 (2d DCA Fla. 1985) clearly held that the State could not appeal an Order suppressing the results of a blood alcohol test pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B) because there was no implication of those constitutional rights provided for in the Fourth and Fifth Amendments to the United States Constitution.

1989The Second District Court of Appeal in State v Townsend, 479 So.2d 306 (Fla. 2d DCA 1985) held that an order granting a motion in limine suppressing the results of a blood alcohol test does not fall within Rule 9.140(c)(1)(b) as one which is appealable since it was neither a pre-trial confession or admission nor evidence obtained by search and seizure.

2019See State v. Warren , 957 A.2d 63 , 67 (Me. 2008) ("At trial on a charge of operating under the influence, a defendant's refusal to submit to a blood-alcohol test is admissible if, prior to the refusal, the defendant was properly warned of the consequences of failure to submit to a blood-alcohol test."); People v. Lucifero , 146 A.D.3d 811 , 45 N.Y.S.3d 166 , 168 (2017) ("[T]he law provides for what happens when drivers refuse to take a blood alcohol test.

2019See State v. Warren , 957 A.2d 63 , 67 (Me. 2008) ("At trial on a charge of operating under the influence, a defendant's refusal to submit to a blood-alcohol test is admissible if, prior to the refusal, the defendant was properly warned of the consequences of failure to submit to a blood-alcohol test."); People v. Lucifero , 146 A.D.3d 811 , 45 N.Y.S.3d 166 , 168 (2017) ("[T]he law provides for what happens when drivers refuse to take a blood alcohol test.

2003Miles II, 775 So.2d at 956 .

2002The trial court further held the prejudice prong of the ineffective assistance of counsel test set out in Strickland [4] had not been met because there was ample evidence, other than the blood alcohol test results, to prove that Wilson was driving while impaired and caused the accident resulting in the death of one person and the serious injury to another. [5] Wilson moved for rehearing arguing that this court's opinion in Servis v. State, 802 So.2d 359 (Fla. 5th DCA 2001), which interpreted State v. Miles, 775 So.2d 950 (Fla.2000), mandates that his convictions be set aside.

1999In Love v. Garcia, 634 So.2d 158 (Fla. 1994), the Florida Supreme Court held in a personal injury case that a blood alcohol test report contained in a hospital record was admissible with no testimony other than that of the business record custodian of the hospital qualifying the report as a business record.

1999The above DUI cases all predated Love , which recognized confusion surrounding the issue. 634 So.2d at 159 .

1995See Section 316.1932, Fla. Stat. (1992) (refusal to submit to breath test is admissible in evidence in any criminal proceeding); Edwards v. State, 603 So.2d 89 (Fla. 5th DCA 1992) (holding that the statute's requirement that the refusal to take the test be received in evidence does not violate any constitutional privileges); State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983) (holding that a suspected drunk driver's refusal to submit to a blood alcohol test can be used as evidence in a criminal case and its admission does not violate either the Florida Constitution or the United States Constitu

1984Based upon South Dakota v. Neville, 459 U.S. 553 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983), this court held in State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983) (which was rendered one day after issuance of the circuit court’s order in this case) that a suspected drunk driver’s refusal to take a blood alcohol test can be used at trial.

1994In Skinner , the United States Supreme Court stated that "a breathalyzer test, which generally requires the production of ... "deep lung" breath for chemical analysis ... implicates similar concerns about bodily integrity and, like the blood-alcohol test ... should also be deemed a search." 489 U.S. at 616-17 , 109 S.Ct. at 1413 .

1994In Skinner , the United States Supreme Court stated that "a breathalyzer test, which generally requires the production of ... "deep lung" breath for chemical analysis ... implicates similar concerns about bodily integrity and, like the blood-alcohol test ... should also be deemed a search." 489 U.S. at 616-17 , 109 S.Ct. at 1413 .

1992The first district, relying on State v. Reisner, 584 So.2d 141 (Fla. 5th DCA), review denied, 591 So.2d 184 (Fla. 1991), held that the county court properly asserted jurisdiction where the state challenged the county court's subject matter jurisdiction to suppress blood alcohol test evidence solely on the basis of its finding that HRS had adopted no rules and regulations for the method of administration of the blood alcohol test.

1992Key to this conclusion in Reisner was the fact that while the state argued that the revised form was substantially similar to the original form and therefore the equipment check was in substantial compliance with the formal rule as promulgated by the Department of Health and Rehabilitative Services, the state had "produced no expert to explain that any deviation in the procedure used by the two forms was insubstantial or unimportant." 584 So.2d at 144 .

1991See South Dakota v. Neville, 459 U.S. 553 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983); Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966); State v. Hoch, 500 So.2d 597 (Fla. 3d DCA 1986), rev. denied, 509 So.2d 1118 (Fla. 1987); Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983).

1988Before the trial court, the State cited and relied upon State v Hoch, 500 So.2d 597 (Fla. 3d DCA 1986) which holds clearly that in an “implied consent” case, such as the one sub judice, the accused person does not have the right to confer with counsel before taking a blood alcohol test, but only has the right to refuse to take the test and suffer the resulting suspension of his driver’s license.

1988The Supreme Court of Kansas, referring to the Court’s holding in Kirby v Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed. 2d 441 (1972) to the effect that “the Sixth Amendment right to counsel may attach to pretrial confrontations or proceedings but only after the State commits itself to the prosecution of the accused,” held in State v Bristor, 691 P.2d 1 (Kan. 1984) that “[i]t is not until after the test has been administered that the state commits itself to the criminal prosecution” and that consequently the Sixth Amendment right to counsel does not attach to a person arrested for driving u

1985The Supreme Court of Kansas, referring to the Court’s holding in Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed 2d 441 (1972) to the effect that “the Sixth Amendment right to counsel may attach to pre-trial confrontations or proceedings but only after the State commits itself to the prosecution of the accused”, held in State v. Bristor, 691 P.2d 1 (Kan. 1984) that “[i]t is not until after the test has been administered that the state commits itself to the criminal prosecution” and that consequently the Sixth Amendment right to counsel does not attach to a person arrested for driving

1988The Supreme Court of Kansas, referring to the Court’s holding in Kirby v Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed. 2d 441 (1972) to the effect that “the Sixth Amendment right to counsel may attach to pretrial confrontations or proceedings but only after the State commits itself to the prosecution of the accused,” held in State v Bristor, 691 P.2d 1 (Kan. 1984) that “[i]t is not until after the test has been administered that the state commits itself to the criminal prosecution” and that consequently the Sixth Amendment right to counsel does not attach to a person arrested for driving u

1988The Supreme Court of Kansas, referring to the Court’s holding in Kirby v Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed. 2d 441 (1972) to the effect that “the Sixth Amendment right to counsel may attach to pretrial confrontations or proceedings but only after the State commits itself to the prosecution of the accused,” held in State v Bristor, 691 P.2d 1 (Kan. 1984) that “[i]t is not until after the test has been administered that the state commits itself to the criminal prosecution” and that consequently the Sixth Amendment right to counsel does not attach to a person arrested for driving u

1983State v. Bender, 382 So.2d 697 (Fla. 1980), citing Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), and Breithaupt v. Abram, 352 U.S. 432 , 77 S.Ct. 408 , 1 L.Ed.2d 448 (1957).

1983State v. Bender, 382 So.2d 697 (Fla. 1980), citing Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), and Breithaupt v. Abram, 352 U.S. 432 , 77 S.Ct. 408 , 1 L.Ed.2d 448 (1957).

1981State v. Bender, 382 So.2d 697 (Fla. 1980); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979), rev'd on other grounds, 390 So.2d 62 (Fla. 1980); State v. Wills, 359 So.2d 566 (Fla. 2d DCA 1978).

1979Appellant cites Opinion No. 071-313 of the Attorney General of the State of Florida dated October 4, 1971 and State v. Wills, 359 So.2d 566 (Fla. 2nd DCA-1978) in support of his position and further cited at oral argument Lester v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA-1977) in support of his position that statutes penal in nature must be strictly construed.

1968The trial court entered its order holding that "the evidence of the results of the alcoholic blood test are inadmissible by operation of Section 317.171, Florida Statutes, F.S.A., and under the cases of Cooper v. State of Florida [Fla.], 183 So.2d 269 , and Edwin Franklin Coffee, Jr. v. State of Florida [Fla.App., 205 So.2d 559 ], rendered December 14, 1967 * * *" The State has appealed this order.

1968The next case in which this question was considered by this Court was Coffey v. State, Fla.App., 205 So.2d 559 .