In a very complicated decision, the Fifth District ruled that police cannot strap drivers on a gurney and bleed them in order to obtain evidence of alcohol in the blood. State v. Geiss, 5D10-3292 (May 27, 2011).
Mr. Geiss was stopped for DUI and refused to take a breath test. “A county judge issued the search warrant, noting that police were requesting blood samples ‘for the purpose of obtaining property that has been used as a means to commit the crime of Driving Under the Influence.’ Based on the warrant, police obtained a blood sample from Geiss.”
Melbourne attorney Ernie Chang moved to suppress the blood test results and Circuit Court Judge Maxwell, in a “lengthy written order,” concluded that obtaining Geiss’s blood by search warrant violated his constitutional right to privacy, the implied consent statute, and the search warrant statute.
The appeals court ruled that the right to privacy was not implicated because the right to privacy is protected by the fourth amendment’s warrant requirement. It found “[b]ecause the legislature did not expressly prohibit seeking a search warrant to obtain blood upon a suspect’s refusal; . . . we should not add that language to the implied consent law ourselves.” However, the District Court did determine that when the crime is a misdemeanor, the “plain language” of the search warrant statute did not permit a warrant for the drawing of blood. “We agree with the trial court that blood cannot be drawn based upon probable cause that a suspect has committed misdemeanor DUI in light of the plain language of section 933.02, Florida Statutes.”
Does this mean Mr. Geiss won his case? ‘Fraid not. The police did not know that they could not get blood in a misdemeanor case. They went to a Judge and got him to review their affidavit and a warrant was issued. “The officer in this case was acting in good faith reliance on a judicial determination that the warrant was authorized.” Therefore, under the “good faith” clause the evidence in this case will be admitted even thought in all future cases the evidence would not be able to be used. The full text of the decision is here.