New rules clouding DUI blood evidence

A state Supreme Court decision brings changes that might affect convictions in some major cases.

By WILLIAM R. LEVESQUE

© St. Petersburg Times,
published August 13, 2001

It's a legal advantage that prosecutors enjoy during the trial of the most serious DUIs, especially those involving deadly crashes.

If a blood test shows a defendant's blood-alcohol level was above 0.08 percent, then jurors can be told to presume a driver was impaired.

"That's an extremely powerful tool for prosecutors," said Pinellas Assistant Public Defender Robert Tager. "It allows jurors to be told to presume impairment without necessarily having to prove it to them in other ways."

But procedures used by the Florida Department of Law Enforcement to store and transport blood were lax, the Florida Supreme Court ruled in November. That led FDLE on July 29 to institute changes in its procedures.

But appeals courts are saying jurors cannot be told to presume drivers were impaired based solely on blood-alcohol readings that were taken before FDLE's rule change last month.

Those rulings are expected to affect hundreds of cases across Florida and led last month to the partial reversal of a Broward County man's DUI-manslaughter conviction for killing six people. He was accused of being under the influence while piloting his boat.

"It's going to have a tremendous effect on the state's ability to prove a case beyond a reasonable doubt," said Tampa attorney Victor Pellegrino, who specializes in DUI defense.

The Supreme Court decision doesn't affect many less-serious DUI cases. Most cases, especially misdemeanor DUIs that don't involve a crash or a death, rely on the Breathalyzer test, which wasn't affected by the decision.

Most misdemeanor DUI cases don't involve drawing blood from the driver.

It's only in the more serious, felony cases that investigators can often compel a blood sample so an FDLE lab can measure a suspect's level of intoxication.

Pellegrino said he wondered whether the decision will force prosecutors to enter plea negotiations in close cases in which there isn't ample evidence of a driver's impairment besides the blood-alcohol level.

Often, there can be overwhelming evidence of a driver's impairment. Police might find beer cans in a car. The driver might stagger and be unsteady on his or her feet. An officer might note a driver's blood-shot eyes and the odor of alcohol.

And prosecutors are still free to present evidence of a driver's blood-alcohol level as measured by the blood test. Jurors simply won't be told to presume impairment based on it.

Still, the decision forces prosecutors to lay a stronger scientific basis than before to get the blood readings admitted as evidence.

"It's going to have a big impact on DUI-manslaughters," said Pinellas-Pasco Public Defender Bob Dillinger.

Many prosecutors remain unconvinced.

"I think it's nonsense to say this is going to be any kind of boon for defense attorneys," said prosecutor Rick Leal, chief of Hillsborough's traffic and misdemeanor divisions.

Leal said many prosecutors often decide against having a judge read to jurors the instruction about presuming impairment. He said it is confusing.

The big impact, he said, is in giving defense lawyers a new outlet to appeal convictions using the FDLE rule change as a scapegoat.

"To find fault with the FDLE is easy," Leal said. "Every time they make a rule change, FDLE has two lawyers. There are thousands of defense lawyers ready to find fault."

In the Tampa Bay area, lawyers couldn't cite any examples in which the Supreme Court ruling led to a conviction's reversal.

The FDLE rule changes focused on the use of anticoagulants and preservatives to run blood tests, and on tightening rules for the way blood was transported.

Some lawyers have complained about blood being transported in unrefrigerated containers or of some officers carrying blood for an extended period of time in the trunk of their cruisers.

Prosecutors say the concerns were exaggerated.

FDLE lawyers say their old rules didn't result in inaccurate blood-alcohol readings. Rafael Madrigal, assistant general counsel to the FDLE's alcohol testing program, said the former blood procedures had previously been endorsed by courts.

"Science and the law are both evolving areas," he said. "The new rules are probably going to be challenged by defense attorneys and then reviewed by the courts. It's a defense lawyer's job to challenge the process any way they can."

In cases after last month's change of procedure by the FDLE, prosecutors can once again tell jurors they can presume impairment based solely on a blood-alcohol reading.

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