Is that a serious bodily injury? Analysis of forced blood draws under F.S. s. 316.1933(1).

• Author: Valuntas, Richard C.
• Position: Florida

Under Florida law, a law enforcement officer may obtain a blood sample, by use of reasonable force if necessary, if the officer has probable cause to believe a motor vehicle driven by a suspect under the influence of alcoholic beverages has caused the death or serious bodily injury of a human being. (1) "Serious bodily injury" is defined as "an injury to any person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ." (2) Although the definition of "serious bodily injury" in F.S. [section] 316.1933(1)(b) seems relatively precise, the dearth of Florida case law on the subject may propagate uncertainty among law enforcement officers, as well as practicing attorneys, regarding when a forced blood draw under [section] 316.1933(1) is appropriate.

Florida case law reveals that "common sense" may indicate when a forced blood draw under [section] 316.1933(1) is appropriate. For example, in Gerlitz v. State, 725 So. 2d 393 (Fla. 4th DCA 1998), an accident occurred involving a pickup truck and a bicycle. The bicyclist suffered a broken back from the accident and was being transported to the hospital when the investigating officer arrived on the scene. The investigating officer smelled an alcoholic beverage on the breath of the pickup truck driver and subjected him to a compelled blood alcohol test. The trial court denied the pickup truck driver's motion to suppress the results of the blood test, and the Fourth District Court of Appeal affirmed the trial court's ruling. The Fourth District's decision in Gerlitz complies with "common sense" because few people would contend that a broken back does not qualify as a "serious bodily injury." Nevertheless, "common sense" is much less helpful when addressing whether injuries less severe than a broken back constitute "serious bodily injuries" under [section] 316.1933(1).

During a Monday Night Football featured game in November of 1985, New York Giants linebacker Lawrence Taylor sacked Washington Redskins quarterback Joe Theismann. (3) The ubiquitous Monday Night Football cameras captured the shockingly gruesome impact of the play. The result of Taylor's bone-crushing blow was a compound fracture to Theismann's lower leg, an injury which ended his professional football career. Most individuals familiar with this grim incident would agree that Theismann suffered a serious bodily injury under any definition of the term. At least one Florida appellate court, however, has held an injury similar to Theismann's may not necessarily constitute a "serious bodily injury" under [section] 316.1933(1).

At approximately 4 a.m. on March 8, 2001, a woman drove onto the center median of a major...