In Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) the United States Supreme Court ruled that warrants were necessary to extract blood from a motorist involved in DUI crash cases where someone was injured.  Although some exceptions exist, this changed the way police obtained blood to determine alcohol content.  However, more recently, Florida’s Fourth District Court of Appeal in McGraw v. State, 245 So.3d 760 (Fla. 4th DCA 2018) ruled that if a motorist is rendered unconscious following a crash where there was injury and he or she was suspected of being impaired that blood can be taken even though there was no conscious consent or a warrant authorizing the procedure.  The reasoning was that Florida’s implied consent law “essentially requires all persons accepting a license to drive in Florida to consent to a blood alcohol test upon being arrested for driving under the influence.” Specifically, Florida statute 316.1932(1)(e) provides:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within the state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood… Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to a blood draw and testing.”

The appeals court opinion held that the language “Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such blood test” permits the police to conduct a blood draw because the unconscious person did not express a refusal and, as such, gave his or her tacit consent by accepting the privilege to drive within the state.  This holding discusses Birchfield v. North Dakota and makes an exception to the warrant requirement.