The Shortcut Week: Florida Caselaw, Week of September 4, 2026

A driver drifted onto the shoulder of the Turnpike and hit four motorcycles. One rider died. When police asked him for his blood, he said no. So they had the paramedics take it anyway.

No warrant. No consent. And no emergency, according to the trial judge.

The State appealed. And this week the Fourth District told the State something it did not want to hear: we don't have the authority to give you that.

I'm Rory Safir, and this is Reasonably Safir.

This one is the caselaw edition: the decisions Florida's appellate courts handed down this week, case by case, for the lawyers who'd rather hear them than read them.

Here's the thing about this week. Almost every case is about a shortcut. The State tried to take blood without a warrant on the strength of one sentence from an old opinion. A prosecutor in Pinellas tried to win a sex case with a steak knife and two condoms that had nothing to do with it. A theft case in Tampa skipped one element and lost the felony. And a man on death row tried his own shortcuts, and the Supreme Court closed every one of them a week before his execution date. So that's the theme. The shortcut week. Let's get into it.

The first case is the one from the cold open, and it's the case of the week for anyone who handles DUI. State of Florida against Sean Michael Marlin, Fourth District, out of Broward County, Judge Lynch below. Judge May wrote it, with Judges Shepherd and Lott, and Judge Shepherd wrote separately.

The facts are bad and I'm not going to soften them. The defendant's car drifted onto the shoulder and struck four motorcycles. One person was killed and two were hurt. The State charged ten counts, including two counts of DUI manslaughter.

Here's what happened with the blood. Police asked him to give blood voluntarily. He refused. About two hours after the crash an officer called a state attorney, who said apply for a warrant. Thirty minutes later the same state attorney called back and said don't bother, enough time has passed, you've got exigent circumstances. So first responders took his blood by force. Nobody ever applied for a warrant.

The defense moved to suppress. The judge found no consent, no warrant, no exigent circumstances, and no inevitable discovery. Every fact went the defendant's way. And then the judge denied the motion anyway, because of a case called Acevedo.

Acevedo is a 2023 Fourth District decision about consent. A driver had been misadvised about his right to refuse, the trial court suppressed, and the Fourth District reversed, finding there was actual consent. Then it added one more sentence: even if he hadn't consented, the officer had probable cause to coerce the blood draw. The State took that sentence and built a doctrine on it. Section 316.1933 says an officer with probable cause in a death or serious injury crash shall require a blood test. Put the statute next to the sentence and the State's position became: probable cause plus a serious crash, we take the blood, no warrant needed.

The defense moved for rehearing and put it plainly: if that's what Acevedo means, McNeely doesn't exist in Florida anymore, because police could take blood any time they had probable cause. The judge agreed, reversed himself, and suppressed. The State appealed.

And watch what the State did on appeal, because it's a craft lesson in reverse. It abandoned exigent circumstances. It abandoned inevitable discovery. It put everything on one theory: that section 316.1933 plus Acevedo gave it the blood on probable cause alone.

The Fourth District said no, and it said it plainly. There are three ways the State gets blood: actual consent, a warrant, or genuine exigent circumstances decided case by case. It cited Birchfield, where the Supreme Court held a breath test can be taken incident to arrest and a blood test can't, and that a state can't deem you to have consented to a blood draw on pain of a crime. It cited Liles from the Fifth District, which held that Florida's implied consent statute isn't a substitute for actual consent. The State asked the court to disagree with Liles. The court said it had already agreed with Liles, back in 2018, in a case called McGraw.

Then it dealt with its own sentence. It called the Acevedo language non-binding dicta. It said the State had, quote, taken Acevedo's language and run with it as a new exception to the Birchfield warrant requirement. And then this: we simply do not have the authority to create an exception contrary to United States Supreme Court authority. To the extent the clause suggests otherwise, we recede from that language.

That's the holding. Affirmed. The blood stays out.

Two more things from this opinion. A footnote for your pocket: the court says in passing that section 933.02 does not authorize search warrants for misdemeanor DUIs. That's a Fifth District case from 2011 called Geiss, and my firm has a page on it. And Judge Shepherd's concurrence, which flags two other Fourth District opinions he thinks got tangled. Chu, from 1988, suggested an officer has to read the implied consent law before actual consent counts. He says that blurred two different things. And Marshall, from last year, said the implied consent blood provision applies at a hospital and not in an ambulance, when the statute itself defines other medical facility to include an ambulance. He couldn't fix either one here because neither was before the court. But he told the bar where the cracks are, and that's an invitation.

The takeaway: if you have a felony DUI blood case in the Fourth District and the State's response cites Acevedo for a probable cause exception, that argument died on Tuesday. And in any other district, you now have a panel saying out loud that no such exception exists.

Now, before we leave blood, I want to put a local case next to Marlin, because the Second District did this work in a Pinellas case two years ago and it's the one you'll actually cite in Clearwater. State against Harris, October 2024, Pinellas County, Judge Helinger below, Judge Northcutt writing. Another fatal crash, another State appeal from a suppression order, another affirmance. But Harris is a timeline, and the timeline is the whole case. The crash was at 5:56 in the evening. The DUI officer arrived at 7:20. He arrested Harris at 8:23. Eleven minutes later, with no consent and no warrant, he had medical personnel draw blood. Then he applied for a warrant, and a judge who lived nearby signed it twenty-one minutes after the application went in.

The State said the officer's own delay plus dissipation created the emergency. The Second District said officers may not create exigent circumstances by their own conduct. Dissipation alone is not an exigency under McNeely, and under Mitchell against Wisconsin there has to be some other factor, a pressing health, safety, or law enforcement need that outranks applying for a warrant. There was a judge on call. Nobody even offered a reason for not asking sooner. And when the State argued inevitable discovery on top of that, the court pointed out the two arguments contradict each other: if the blood was vanishing so fast you couldn't wait for a warrant, how would the same blood have been inevitably discovered? Both rejected.

Put Harris and Marlin together and you have the blood draw rule for this part of the state. Harris is the timeline: when could you have asked, and why didn't you. Marlin is the door that was supposed to bypass the timeline, and it's shut.

The next case is Green against the State, Second District, decided this morning, out of Pinellas County, Judge Sercus below. Judge Silberman wrote it, with Judges Morris and Black. This is a reversal for fundamental error in a sexual battery case, and that doesn't happen often.

Green was charged with sexual battery and incest involving his niece. The incidents happened in his van. At trial the defense conceded the incest. The fight was over whether the sex was forced.

Here's what the State did. It put into evidence a steak knife found in a small recessed area of the van, and two sealed, unused condoms found inside it. The victim never said there was a knife. She never said she saw one or was threatened with one. She said nothing about condoms. Nothing connected either item to anything that happened. And trial counsel didn't object.

The State made them a feature. A crime scene technician testified about finding the knife and swabbing it for DNA. A detective testified that he watched the swab. And in closing, the prosecutor told the jury, and this is the opinion quoting the transcript: there was a little compartment in the back of that van. Had two condoms in it. It's a strange thing to find, I would submit to you folks. And then: when he took her in that van, I submit to you he knew exactly what he was doing. It was thought out. He preyed on her.

On appeal, the State argued that many people keep a knife in their vehicle, and that the condoms showed Green was responsible, which suggests good character. The court called that unavailing.

The analysis runs through a Florida Supreme Court case called Agatheas, where a man arrested for a five-year-old murder had a backpack with a revolver, a bandana, and latex gloves, none of it connected to the crime, all of it admitted without objection. The Supreme Court held that where the only possible relevance of an item is bad character or propensity, it's inadmissible, and admitting it is presumed harmful. Same here. The State used the knife and condoms to argue intent, and in a sexual battery case intent isn't even a material fact. Then add the closing, where the State conceded on appeal that a number of the prosecutor's statements were, in its own words, likely improper. The court found personal opinions of guilt, comments on the right not to testify, and burden shifting. All of it together: fundamental error. Sexual battery and battery reversed for a new trial. The incest conviction stands because the defense conceded it.

Two takeaways. The obvious one is object, because none of this was preserved and the court had to go through the narrow door of fundamental error to reach it. The less obvious one is for the State. When you build a feature out of evidence that proves nothing, you create the one kind of error that survives the failure to object.

Quick pause, colleague to colleague. My firm handles DUI, criminal defense, and personal injury across Tampa Bay. If a case walks through your door that you'd rather send out, call or text 727-472-8096. I gladly accept referrals.

The next case is Russell against the State, Second District, out of Hillsborough County, Judge Sisco below. Judge Guard wrote it, with Chief Judge Lucas and Judge Villanti. This one's about proving value in a theft case, and the court's frustration with its own docket is the story.

A man came home from work and found two strange bicycles at his back gate. He heard a commotion in his bedroom and called 911. Tampa police called the burglars out. Russell walked out carrying a bag with six wristwatches, two film cameras, an unopened kitchen knife set, and a hair trimmer. The State charged burglary and grand theft, alleging the property was worth at least a hundred dollars and less than seven hundred fifty.

To prove value, the State called the owner. He testified to when he bought each item, what he paid, how he used it, and what shape it was in. When the State asked for his opinion of fair market value, the defense objected that no foundation had been laid, and the judge sustained it. So the State went item by item on purchase price and condition, and rested. The defense moved for judgment of acquittal on value. Denied. Convicted.

The Second District reversed the grand theft. Value means market value at the time and place of the offense, and the Florida Supreme Court laid out four factors for proving it back in 1974 in a case called Negron: original cost, manner of use, condition and quality, and depreciation. The owner covered three of the four. Nobody testified to depreciation or to fair market value. Without the fourth factor the evidence was legally insufficient. And the court didn't hide its feelings. It said proving market value under Negron has been a surprisingly difficult exercise, then cited more than a dozen of its own reversals on the same point, and in a footnote suggested the legislature could fix it by striking a few words from the statute. The remedy is judgment on petit theft, not a new trial. The court also cut the public defender application fee from a hundred dollars to fifty, which the State conceded.

The takeaway goes on an index card. In every theft case, listen for depreciation. If the owner says what he paid and what shape it was in but never says what it was worth when it was taken, move for judgment of acquittal on value and cite Negron. The Second District has reversed on this more than a dozen times. It'll do it again.

One short one, and it belongs here because it's a footnote to last week. Foster against the State, Second District, decided today, also Hillsborough, also Judge Sisco. Foster is serving life as a prison releasee reoffender for a 2005 armed robbery, final since 2006. He filed a habeas petition arguing that under Erlinger and Apprendi a jury had to find the facts that made him a PRR. Last week I walked through four doors for that argument and told you three were shut. Foster tried a fifth door, habeas, and the Second District shut it in a page: habeas can't substitute for a postconviction motion, and he'd already raised the same claim in 2010 under rule 3.800(a) and lost. Same map as last week, one more door on it.

Now the case with a date attached. Daniel Conahan against the State, Florida Supreme Court, decided Thursday. Governor DeSantis signed a death warrant on August 11, and the execution is set for September 10. That's next Thursday. Conahan was convicted of the 1996 murder of Richard Montgomery. He already had a third successive postconviction motion pending from 2023 and a DNA testing motion from last year. Under warrant he filed a fourth, petitioned the Supreme Court directly for habeas, and asked for a stay. The trial court summarily denied the motions, and on Thursday the Supreme Court affirmed those denials, denied the habeas petition, and denied the stay. Justice Tanenbaum wrote for the court.

Two holdings that matter outside capital work. The newly discovered evidence claim rested on new research, and the court restated that new research studies are not newly discovered evidence, citing its 2023 decision in Sliney. And the DNA motion: the victim's fingernail clippings had been tested and contained only the victim's DNA. Conahan argued newer testing might find a trace of someone else. The court called that purely speculative, said his burden was a reasonable probability the testing would exonerate him, and said he offered nothing but maybe. Denied, and no rehearing.

I'll leave it there. This isn't an episode about the death penalty. But when the state schedules an execution, the law that decides the final week is worth knowing, and this is it.

Two more in one breath. Susan Lorincz, the Marion County case a lot of you followed in the news, had her appeal affirmed per curiam by the Fifth District on Thursday. One word, no opinion. And Keith Agee's first-degree murder conviction out of Escambia County was affirmed by the First District on an Anders brief, which normally means nothing to read. Except Judge Winokur wrote a concurrence that walks through more than a hundred years of Florida manslaughter cases to argue that heat of passion is both an element of voluntary manslaughter and a partial defense to murder, and that the newer cases have drifted from the older ones. If you try homicides, read it.

The rest of the week, and it's a big rest, is per curiam affirmances. Around a hundred and seventy of them. A hundred and seventy affirmances without opinion is the same reminder every week: by the time the case reaches the district court, the record is already written, and it was written in a trial courtroom by someone who either preserved the issue or didn't.

One more thing before I let you go, because ten minutes of holdings is a digest, and this show doesn't do digests. Every Friday this segment takes the one doctrine the week actually turned on and gets into the deep end. This week it's blood: the three ways the State can take a blood sample in a DUI case, what each one requires, and where the lines sit as of this week.

Start with why it matters. A blood draw is a search. The Supreme Court said so in Schmerber in 1966 and has never wavered. So the State needs a warrant unless the draw fits an exception, and in a DUI case there are three that matter: search incident to arrest, exigent circumstances, and consent. The Supreme Court has spent thirteen years narrowing all three.

Search incident to arrest went first, in Birchfield in 2016. Breath test incident to arrest, yes. Blood test, no. Breath is minimally intrusive and gives the State what it needs. Blood is a needle in your arm and a sample that carries far more than your alcohol level. And the same case held that a state can't deem you to have consented to a blood test on pain of a crime, which is the sentence that took statutory implied consent off the table as a substitute for real consent.

Exigent circumstances went next, in McNeely in 2013. For decades the State argued that alcohol leaves the blood over time, so every DUI is an emergency. The Court said dissipation may support exigency in a specific case, but not categorically. Then in 2019, in Mitchell against Wisconsin, a plurality added one category where exigency will almost always exist: the unconscious driver, who can't take a breath test and needs medical care that takes priority over a warrant. So the current shape is dissipation plus something else, and the something else has to be a real health, safety, or law enforcement need that outranks the warrant. Harris is what that looks like in practice. A judge on call, a phone in the officer's pocket, and no reason offered. No exigency.

Which leaves consent, and consent is where the litigation actually lives. Actual, voluntary consent takes the blood draw outside the implied consent scheme entirely. The Florida Supreme Court said so in Robertson in 1992. But the word that matters is voluntary. Consent that's really submission to a claim of authority isn't consent, and that's what Acevedo was about before the State turned it into something else. What the Fourth District did not do, and said this week it never did, was create a rule that probable cause alone lets an officer coerce the draw.

Here's the piece to hold onto, and it's in Judge Shepherd's concurrence. Florida's implied consent statute, section 316.1932, was written for breath. It's the breath test that has to be incidental to a lawful arrest. Blood under 316.1933 was written for death and serious injury crashes, and it says the officer shall require a blood test on probable cause. Read that as a directive to the officer and it's fine, because Marlin now says the officer needs a warrant, or consent, or a real exigency, to carry it out. Read it the way the State did, as standalone authority, and you've repealed McNeely by statute. So when 316.1933 shows up in a response, the question is: cited for what? As the reason the officer went looking for blood, fine. As the reason he could take it without a warrant, that's Marlin.

One more layer, the one that catches people. The warrant statute, section 933.02, authorizes a warrant for evidence relevant to proving a felony, and doesn't say the same about misdemeanors. The Fifth District read it that way in Geiss in 2011, as my firm's page on it lays out, and the Fourth District nodded at it in a footnote this week. So the felony line matters twice in a blood case. It decides whether 316.1933 is in play, and it decides whether the State could have gotten a warrant at all.

So here's the working playbook when there's blood in a DUI file. First, was there a warrant? If yes and it's a misdemeanor, read Geiss and read the application. If no warrant, second: does the State claim consent? Get the officer's exact words. If he read warnings that didn't apply, or told your client refusal wasn't an option, the consent argument is in trouble. Third: does the State claim exigency? Build the timeline the way the Second District did in Harris. Crash, officer's arrival, arrest, draw, warrant application, and who was on call. Then ask what prevented an earlier application. If the answer is dissipation, that's McNeely. If the answer is nothing, that's Harris. And fourth: if the State cites Acevedo or 316.1933 for the idea that probable cause was enough, hand the judge Marlin.

One honest caveat. Marlin is a Fourth District case and Harris is a Second District case, and an unconscious driver is a different case under Mitchell. But the rule underneath all of it is the United States Supreme Court's, and the Fourth District just said, in words, that it lacks the authority to carve an exception out of it. That's a sentence you can read to any judge in Florida.

If you want the opinions, Marlin, Harris, and Acevedo together, plus a one page timeline worksheet for a blood draw suppression hearing built on the Harris sequence, email me and I'll send the set.

So that's the week. A blood draw the State tried to justify with one sentence of dicta, and the court that wrote the sentence took it back. A Pinellas sex case reversed because the State made a feature out of a knife nobody mentioned. A Tampa grand theft that became petit theft because nobody said the word depreciation. A fifth door shut on last week's argument. And a death warrant that runs out next Thursday, with every claim denied.

The pattern, if you want one: every shortcut this week was taken by someone who had a longer road right there and didn't take it. The officer had a judge on call. The prosecutor had a victim's testimony. The State had one more question to ask the owner. The road was there. They just didn't walk it.

One caveat, colleague to colleague. These are summaries, most of these decisions aren't final until the rehearing window runs, and nothing in this episode is legal advice. Pull the opinion before you rely on a word of it.

If you want any of this week's opinions or that blood draw worksheet, email me at Rory at the Safir lawyer dot com and I'll send them over.

Take care of yourself, and take care of your clients.