Recently, the United States Supreme Court issued its opinion in the case of Missouri v. Tyler G. McNeely. Justice Sonya Sotomayer, writing for the Court, held “that natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” In other words, unless there is an emergency withdrawing blood from a person suspected of DUI without a warrant is prohibited under the Fourth Amendment to the U.S. Constitution. In 1966, the U.S. Supreme Court , in Schmerber v. California, held that law enforcement’s blood draw of the defendant and person suspected of DUI was lawful despite the fact that the blood draw was taken without the issuance of a warrant because an emergency existed that did not provide the opportunity to seek out a neutral and detached magistrate because the accused had to be taken to the hospital, and the scene of the accident required significant investigation.

The differences between McNeely and Schmerber are many. The clearest distinction is that McNeely was not in an accident, no one was injured, and he did not have to go the hospital. Thus, unlike in Schmerber, no emergency existed. Another difference between McNeely and Schmerber is the passage of time the advances in technology especially forms of communication, i.e., email, texting, scanning, instant messaging, etc… Thus, the ability to get a warrant in 1966, the year of the Schmerber opinion, the task of getting a warrant signed was much more arduous then the task is today. Today, a warrant can be typed, emailed to a judge from a laptop in a patrol car, and returned electronically signed in an instant. (This is how officers were getting warrants to take blood in DUI cases in Brevard County, See State v. Gregory G. Geiss). Thus, in this day and age, the facts in Schmerber may not be sufficient to allow for a blood draw without seeking a warrant and issuance of said warrant.

Since the McNeely decision, a question has arisen: Does Florida Statute 316.1933, on its face, violate the warrant requirement found in the Fourth Amendment to the U.S. Constitution? Further, does Florida Statute 316.1933 violate the Fourth Amendment as applied in particular situations?

Florida Statute 316.1933 provides: