A Florida appellate court heard arguments last week regarding forced blood DUIs. California addressed this issue, which is known to have major effects on DUI cases, some time ago.
California has the "implied consent" rule which in effect states, in return for a valid California Driver License, a person implicitly consents to a blood or breath test under certain circumstances. The law allows law enforcement to use force in obtaining a blood test as long as it is not obtained by the use of unreasonable force or for an improper purpose.
Upon an arrest for driving under the influence, a police officer will advise the suspect of the requirement for a chemical test of blood or breath. There is a chemical test admonition form used for this purpose [C.V.C. ยง 23612]. This form, which allows the peace officer to document the advisement, states:
1. You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood.
2a. Because you are under the influence of alcohol, you have a choice of taking a breath or blood test.
b. Because I believe you are under the influence of alcohol or drugs, you have the choice of taking a blood, breath or urine test.
c. (when applicable) Since the blood and breath test is unavailable, you are deemed to have given your consent to chemical testing of your urine.
d. (when applicable) Since you need medical treatment, your choice is limited to...
3. If you refuse to submit to, or fail to, complete a test, your driving privilege will be suspended for one year or revoked for 2 or 3 years. A second offense within 10 years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of C.V.C. section 23140, or a separate administrative determination that you were driving with a blood alcohol content of .01 percent or more while under the age of 21, or .04 while operating a commercial vehicle, or a blood alcohol content of .08 percent or more at any age, or refusing a test will result in a 2 year revocation. Three or more offenses within 10 years of any combination of the above violations, convictions or separate administrative determinations will result in a 3 year revocation.
4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and/or imprisonment if this arrest results in a conviction for driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test you will take or during the test.
6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.
After this is read, the responses are recorded by the peace officer.
One of the problems with this admonition is not allowing an attorney present. Although this makes sense because time is of the essence, as alcohol is continuously being burned off, people are naturally taken aback when they are told this by a police officer.
The ultimate problem with forced blood is the effect it can have on a California Driver License. If a person refuses a chemical test and an officer does not force blood, an important piece of evidence for the prosecution is missing. However, if a person refuses the test and blood is forced, then he/she is punished for the refusal, by both DMV and the Court, and the chemical test is available to be used against him/her in court.
