A driver drifted onto the shoulder of Florida’s Turnpike and struck four motorcycles. One rider was killed and two more were hurt. When police asked him to give blood, he said no. First responders took it by force anyway, and nobody ever applied for a warrant.
On September 2, 2026, the Fourth District Court of Appeal held that the blood stays out. What makes the decision worth your attention is not the suppression. It is the sentence the court took back on its way there, because prosecutors around the state had been using that sentence for three years to take blood without asking a judge.
What happened after the crash
The State charged ten counts, including two counts of DUI manslaughter. The facts of the blood draw are laid out in the opinion and they are unusually clean.
Police asked the driver to give blood voluntarily and he refused. About two hours after the crash, an officer called an assistant state attorney, who told him to apply for a warrant. Thirty minutes later the same prosecutor called back and said not to bother, because enough time had passed that this was now an emergency. First responders drew the blood by force. No warrant application was ever made.
The trial judge found every fact in the defendant’s favor. No consent, no warrant, no exigent circumstances, and no inevitable discovery. Then he denied the motion to suppress anyway, because of a 2023 case called Acevedo. On rehearing the judge reversed himself and suppressed the blood. The State appealed, and lost.
The one sentence the State built a rule on
Acevedo was a consent case. The Fourth District reversed a suppression order there because the record supported actual consent, and then it added one more line: even if the defendant had not voluntarily consented, the officer had probable cause to coerce the blood draw.
That clause did no work in Acevedo. The case was already decided on consent. But prosecutors read it as a standalone rule, and paired it with Florida’s forced blood draw statute to argue that probable cause plus a serious crash equals blood, with no warrant required.
The Fourth District called that reading what it is. The second clause was, in the court’s words, unnecessary to the decision and therefore non-binding dicta. The opinion then says the State “has taken Acevedo’s language and run with it as a new exception to the Birchfield warrant requirement to obtain a blood draw,” and answers it in one line: “We simply do not have the authority to create an exception contrary to United States Supreme Court authority.”
Then the court receded from the language. To the extent the clause suggests otherwise, it wrote, we recede from it. A district court receding from its own words is rare, and it means the argument built on those words is finished in that district.
What section 316.1933 actually does
Almost every article you will find on this subject describes Florida’s forced blood draw statute as an exception to the warrant requirement. Read the text and you can see why the reading is tempting. Section 316.1933(1)(a) says that where an officer has probable cause to believe a driver under the influence has caused death or serious bodily injury, the officer “shall require” a blood test, and “may use reasonable force if necessary” to get it.
Shall and force are strong words. What the statute never says is that the Fourth Amendment stops applying. It is a directive aimed at the officer, telling him what to do in a serious crash. It is not a grant of permission to skip the judge, and a state legislature could not hand out that permission anyway, because the warrant requirement comes from the United States Constitution as the Supreme Court has read it.
The distinction sounds academic until you see the two readings side by side. Read as a directive, the statute tells an officer to go get blood in a fatal crash, and he still needs consent, a warrant, or a genuine emergency to take it. Read as standalone authority, the statute quietly repeals Missouri v. McNeely in Florida, because police could take blood any time they had probable cause. The Fourth District has now said which reading is correct.
The three ways police can take your blood
After this decision the list in a Florida DUI case is short, and it has not changed since the Supreme Court finished narrowing it.
Actual consent. Real, voluntary agreement. Consent that is submission to a claim of authority is not consent, and Florida’s implied consent scheme is not a substitute for the real thing. The Fifth District said so in State v. Liles in 2016, and the Fourth District had already agreed with that view before this case.
A warrant. Signed by a judge, on probable cause. Warrants are faster than the State usually suggests, which is a point that decides cases.
A genuine exigency, decided case by case. McNeely settled in 2013 that the natural dissipation of alcohol does not by itself create an emergency, because if it did then every DUI would be one. Mitchell v. Wisconsin added in 2019 that there has to be some other pressing need that outranks stopping to ask a judge, and the unconscious driver is the plainest example.
Birchfield v. North Dakota closed the fourth door in 2016. A breath test may be taken incident to a lawful arrest. A blood draw may not, and a state cannot make refusing one a crime.
The footnote worth keeping
Buried in the opinion is a line most summaries will skip. In a footnote the court writes that section 933.02 does not authorize search warrants for misdemeanor DUIs.
That matters twice in any blood case. It decides whether the forced draw statute is in play at all, because that statute is keyed to death or serious bodily injury. And it decides whether a warrant was even available to the officer, which is the first question worth asking when the State says it had no choice.
Two more opinions the concurrence flagged
Judge Shepherd concurred separately to point at two other Fourth District decisions he believes have tangled the same threads.
The first, from 1988, suggested that an officer has to read the implied consent law before actual consent counts, which blurs two different legal questions into one. The second, from last year, held that the blood provision applies at a hospital and not in an ambulance, when the statute’s own definition of other medical facility includes an ambulance.
Neither issue was before the court, so neither could be fixed here. A judge writing separately to mark where the cracks are is an invitation, and defense lawyers in that district should read it as one.
What this means if there is blood in your case
Start with whether a warrant exists. If there is one and the charge is a misdemeanor, read the footnote above and then read the affidavit. If there is no warrant, the State has to pick a lane, and each lane has a question that decides it.
If the claim is consent, the officer’s exact words are the case. Warnings that did not apply to the situation, or any version of telling a driver that refusal was not an option, put voluntariness in serious doubt. If the claim is emergency, build the timeline: the crash, the officer’s arrival, the arrest, the draw, the warrant application, and who was available to sign one. Then ask what prevented an earlier application. If the answer is that alcohol was dissipating, that is McNeely and it is not enough. If the answer is nothing, that is a manufactured emergency, which is what the Second District rejected in a Pinellas case where a warrant came back signed twenty one minutes after somebody finally asked.
And if the response cites Acevedo or the forced draw statute for the idea that probable cause alone was enough, that argument died on September 2.
The full rundown
I cover Florida’s appellate decisions every Friday for other lawyers. This decision led the September 4 edition, which also walks the three ways the State takes blood and the four questions worth asking of any file with a blood result in it.
Common questions
Can Florida police take your blood without a warrant after a serious crash?
Only with actual voluntary consent or a genuine emergency judged on the facts of that case. Florida’s forced blood draw statute directs an officer to require a blood test where he has probable cause to believe an impaired driver caused death or serious bodily injury, and it allows reasonable force, but the Fourth District held in September 2026 that the statute does not create an exception to the warrant requirement. Probable cause on its own is not enough.
What does it mean when a court recedes from its own language?
It means the court is withdrawing words it wrote in an earlier opinion, so those words no longer support the argument being built on them. Here the court explained that the sentence had been dicta all along, meaning it was never necessary to the earlier decision and never binding, and it removed the sentence to stop the confusion it had caused.
Does refusing a blood draw in Florida help or hurt?
Refusal has its own consequences under Florida’s implied consent scheme and those are worth understanding before anybody is in that position. What refusal does in a case like this one is remove consent as a justification, which forces the State to produce a warrant or a real emergency instead. In this decision the refusal is exactly why the blood came out.
Can police get a blood warrant in a misdemeanor DUI in Florida?
The Fourth District noted in a footnote that section 933.02 does not authorize search warrants for misdemeanor DUIs, which follows how the Fifth District read the statute in 2011. The felony line therefore matters twice: it decides whether the forced draw statute applies, and it decides whether a warrant was available at all.
Related reading: the blood draw warrant requirement, consent to a blood draw, exigent circumstances and a warrantless draw, and whether police can get a blood warrant in a misdemeanor DUI.
WRITTEN AND REVIEWED BY
Rory Safir, ACS-CHAL Forensic Lawyer-Scientist
He is the author of The Florida DUI Trial Manual, an NHTSA-qualified instructor in the standardized field sobriety exercises, faculty of the National College for DUI Defense, and a former Assistant Public Defender in the Thirteenth Judicial Circuit.
This post is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. The decision discussed is State v. Marlin, 4D2025-1448 (Fla. 4th DCA Sept. 2, 2026), receding in part from State v. Acevedo, 366 So. 3d 1096 (Fla. 4th DCA 2023); the statutes are sections 316.1933 and 933.02, Florida Statutes, and the controlling federal decisions are Missouri v. McNeely, 569 U.S. 141 (2013), Birchfield v. North Dakota, 579 U.S. 438 (2016), and Mitchell v. Wisconsin, 588 U.S. 840 (2019). Most decisions are not final until the time for rehearing expires. Every case turns on its own record, and past results do not guarantee a similar outcome.
