Expert: Chris Wagoner - 2/21/2011

Question
Commander,  What is and/or is there an SOP (Standard Operating Procedure) in Florida (specifically Orlando)regarding testing a driver involved in a fatal car accident with a pedestrian and/or operator of another vehicle for alcohol or drug levels and involvement?  Must the driver be tested for alcohol and/or drugs?  If no SOP then what facts need to exist for the driver to be so tested, i.e. appearance, driver's motor vehicle history, prior driving while under the influence, witness testimony? If alcohol and/or drug testing is required then how long after the incident (with police on scene) should the test be performed?  Please advise.  Thank you

Answer
Good afternoon Terrence,

There is no SOP in Florida for how to handle THI's as far as DUI suspects are concerned, but there is State law that is followed. Florida State Statue 316.193 is the DUI state law that governs a lot of what your asking. There is also a specific State Statue that deals with crashes that involve death or serious injury.

316.1932 "Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal". Deals with DUI in General and 316.1933 "Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use reasonable force" is the one that covers crashes with serious injuries or fatals.

To make it all short for you an officer must have some kind of indicator that the person involved in the crash and driving a vehicle is DUI in order to take a blood sample. What does that mean? It means that an officer must have some kind of reason that they think the person has been drinking and some reason to believe that the person is under the influence of drugs or alcohol.

The way the law is written is this: If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner.

The term that you have to understand is "probable cause" which means more than just suspecting or mere suspicion. Here is how the courts have restricted the officers:

"The Court measures probable cause by the test of reasonableness, a necessarily subjective standard that falls between mere suspicion and certain knowledge. Facts and circumstances leading to an arrest or seizure must be sufficient to persuade a reasonable person that an illegal act has been or is being committed. Always the test involves the consideration of a particular suspicion and a specific set of facts. Hunches or generalized suspicions are not reasonable grounds for concluding that probable cause exists. Judges, not law officers, must determine if probable cause exists, and thus if a warrant should be issued. "

So to answer your question, there is no State SOP but we are governed by State Law in DUI's and Fatal crashes. The laws are very clear that we have to be able to articulate or explain why we had "probable Cause" to belive a person involved in a crash was suspected of DUI.

As for time, of course time is important as a persons body rids itself of alcohol at a given rate over time. So taking the blood sample as close to the time of the crash is important, and we like to take 2 set about 45 min - to 1 hour apart. That way we can actually tell if the persons blood alcohol is on the way up (still climbing) or going down. If it is determined at a later time that the person was DUI and the officer develops probable cause, they can always get a subpoena for the hospital records if there were any. In cases where there are no blood test at a hospital it is sad but there can not be any test done at a later date to determine BAC.

When I worked in Traffic Homicide for the years I did, we almost always tried to see if we could get PC (probable cause) to test drivers of fatal crashes. Bottles in the car, witness statements to them drinking, anything that we could use. But in some cases you just do not have enough proof to raise to the level the courts want to have a blood draw.

I hope that explains it to you a little better. If you have any questions about anything I said please feel free to ask for clarification or more information. I would be happy to try and explain anything you don't understand.

Be well and stay safe..