Fla. sheriff seeks DUI blood tests

By Dianna Cahn

FORT LAUDERDALE, Fla. — When the Palm Beach County Sheriff's Office conducts a DUI patrol later this month, blood will be flowing.

Into vials, that is.

The Sheriff's Office plans to carry out a saturation patrol that's different from the norm. Usually, if a person is stopped on suspicion of driving under the influence, they can refuse to provide a breath sample and face the consequences of being arrested and a possible license suspension.

On Feb. 27 and 28, the Sheriff's Office plans to apply for a search warrant from an on-call judge for anyone refusing a breath test, to take a blood sample, according to a memo by Captain Patrick Kenny, head of the agency's traffic division.

"As you know, disregard of traffic regulations and drinking and driving are a problem in Palm Beach County," Kenny wrote in the memo to agency heads, "and we are requesting your assistance to cite traffic violators and remove drunk and impaired drivers from our roadways."

Under Florida statute, blood samples are taken from people if an accident caused serious injury or death. Using a search warrant to force a blood sample from all DUI suspects is controversial and has been defeated in some courts, experts said.

"They are opening up a can of worms," said Michael A. Cohen, a former DUI prosecutor who is now a partner at one of South Florida's best-known DUI defense law firms, Essen, Essen, Susaneck, Charnota & Cohen. "They are trying to act outside the law."

Sheriff's Office spokesman Pete Palenzuela said there will be three command posts in the north, center and south of the county, and a central location for drawing blood.

Cohen questioned the legality of the operation.

"As far as I am concerned it is unconstitutional," Cohen said. "Under Florida law we are given as drivers an option, really a right, to refuse. If you haven't hurt anybody and haven't killed anybody, they have no right to take your blood."

Also, under Florida statute, DUI cases are more easily prosecuted when someone is charged under the laws of implied consent: they took the breath sample test willingly or failed a sobriety test, he said.

But under a forced blood test, the prosecution will have the burden of proving that the blood tests were done appropriately and reliably, Cohen said.

Just the cost of expert witnesses alone will make it prohibitive, Cohen said.

Copyright 2009 Sun-Sentinel

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