I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. Before private practice I taught at the police academy and served as chief operating officer of the Hillsborough County Public Defender’s Office, and I have watched the law of DUI blood draws move steadily in one direction for more than a decade: toward the warrant. Marlin is the clearest Florida statement yet of where that road ends, and our attorneys are already using it.

What Does the Fourth Amendment Require Before Police Draw Your Blood?

A warrant, unless a recognized exception applies — and the United States Supreme Court has spent the last thirteen years narrowing those exceptions for blood. Drawing blood is a search. In Missouri v. McNeely, 569 U.S. 141 (2013), the Court rejected the argument that because alcohol dissipates from the bloodstream over time, every drunk-driving investigation is automatically an emergency that excuses the warrant; exigency has to be shown case by case, on the totality of the circumstances. (Read the opinion.) Three years later, in Birchfield v. North Dakota, 579 U.S. 438 (2016), the Court drew the line that governs every roadside today: police may administer a breath test as a search incident to a lawful DUI arrest, but not a blood test — and a state cannot deem drivers to have “consented” to a blood test by criminalizing refusal. (Read the opinion.)

The practical takeaway is simple: when officers want breath, the arrest itself is usually enough; when they want blood, they need your actual agreement, a judge’s signature, or a genuine emergency they can prove later.

What Did the Fourth DCA Decide in State v. Marlin?

That prosecutors had been reading one of the court’s own opinions too generously, and that the warrant requirement means what it says. In State v. Marlin, No. 4D2025-1448 (Fla. 4th DCA Sept. 2, 2026), a driver drifted onto the shoulder of the Turnpike and struck four motorcycles, killing one rider and injuring two others. He was charged with two counts of DUI manslaughter, two counts of DUI with serious bodily injury, and additional injury and property-damage counts. Officers asked him to consent to a blood draw. He refused. Roughly two hours after the crash, law enforcement called a prosecutor, who told them to apply for a search warrant; about thirty minutes later the same prosecutor called back and said they could proceed without one because “exigent circumstances existed due to the elapsed time.” First responders then drew his blood by force.

The trial court initially denied suppression, openly “struggling” with a sentence in the Fourth District’s 2023 decision in State v. Acevedo that said an officer with probable cause could “coerce” a blood draw. On rehearing the judge reversed course and suppressed the results. The State appealed, and the Fourth District affirmed, holding:

1. No per se exigency. The natural metabolization of alcohol does not, by itself, justify a warrantless blood draw. Exigency must be decided on the totality of the circumstances in the particular case.
2. Warrant required regardless of implied consent. In the court’s words, “Unless a motorist gives actual consent or a court determines under the totality of the circumstances that exigent circumstances exist, a warrant must be obtained for a blood draw to satisfy the Fourth Amendment. This is true regardless of a state’s implied consent laws.”
3. The crash statute is a directive to get a warrant, not a substitute for one. Section 316.1933, which tells officers to obtain blood in crashes causing death or serious injury, “must assume the blood draw will be obtained with a warrant, absent consent or proof of exigent circumstances.”
4. Acevedo’s “probable cause” language is withdrawn. The court called that sentence “unnecessary to our decision and thus non-binding dicta,” noted that “the State has taken Acevedo’s language and run with it as a new exception to the Birchfield warrant requirement,” and receded from it: “We simply do not have the authority to create an exception contrary to United States Supreme Court authority.”

For defense lawyers who have been hearing “Acevedo says probable cause is enough” in suppression hearings for three years, that fourth holding is the one that matters most.

Does Florida’s Implied Consent Law Let Police Take Blood Anyway?

No — and this is the argument the State lost in Marlin. Florida has two statutes that talk about blood. Section 316.1932(1)(c), Florida Statutes, deems a driver who appears for treatment at a hospital, clinic, or “other medical facility” to have consented to a blood test when a breath or urine test is impractical or impossible, and expressly defines “other medical facility” to include an ambulance or other medical emergency vehicle. Section 316.1933, Florida Statutes, provides that when an officer has probable cause to believe an impaired driver caused death or serious bodily injury, the officer “shall require” a blood test and “may use reasonable force if necessary.”

Read in isolation, those statutes sound like authority to take blood on probable cause alone. Read against McNeely and Birchfield, they cannot be. A statute cannot supply the “consent” the Fourth Amendment requires — Birchfield said so directly — and the Fourth District followed the Fifth District’s decision in State v. Liles, 191 So. 3d 484 (Fla. 5th DCA 2016), which had already rejected the argument that statutory implied consent satisfies the Constitution when a driver actually refuses. Marlin therefore reads section 316.1933 as a set of marching orders to officers — go get the blood in serious crashes — with an unstated constitutional condition: get a warrant, unless the driver agrees or a real emergency exists.

Judge Shepherd’s concurrence adds two clarifications that will matter in Tampa hospital cases. First, actual consent and statutory implied consent are different things: if a driver voluntarily agrees to a blood draw, officers do not have to recite the implied consent warnings, and the technical requirements of the implied consent statute do not apply. Second, the location of the draw is not what decides the question. An ambulance is a “medical facility” under the statute, but a nonconsensual blood draw in a hospital “must still satisfy either the warrant requirement or the impractical/impossible prong” of the implied consent law. Being in an emergency room does not waive your Fourth Amendment rights.

When Is a Warrantless Blood Draw Still Lawful in Florida?

Two doors remain open, and the State has to walk through one of them:

The consent door is where most Tampa Bay cases are actually litigated. A driver in a hospital bed, in pain, surrounded by uniforms, who says “okay” after being told that officers will “just get a warrant” if he does not, has not given the kind of free and voluntary consent the Constitution requires — that is the fact pattern Acevedo itself arose from, where the trial court found the driver had been “misadvised that if he did not agree, law enforcement would get a warrant and take a blood sample against his will.” Our attorneys take the recording, the timeline, and the exact words used in every one of these cases, because the difference between consent and acquiescence is usually a single sentence.

What Counts as Exigent Circumstances — and What Does Not?

The test is the totality of the circumstances, and Marlin is a textbook example of the State failing it. Alcohol dissipating in the blood is a factor; it is never enough by itself. Delay that officers could have avoided does not count in the State’s favor. In Marlin, law enforcement had two and a half hours after the crash, a prosecutor on the phone who initially told them to get a warrant, and no explanation for why a warrant could not have been sought during that window. Calling the passage of time an “emergency” when the passage of time was the officers’ own choice is exactly what McNeely forbids.

Genuine exigency looks different: a mass-casualty scene that occupies every available officer, a driver being airlifted to a distant trauma center, a medical procedure that will contaminate the sample, or — under the Supreme Court’s plurality decision in Mitchell v. Wisconsin (2019) — an unconscious driver who cannot take a breath test and requires immediate medical care. Even there, the analysis is fact-specific, and the State bears the burden.

What Happens to a DUI Case When the Blood Draw Is Suppressed?

The “unlawful blood alcohol level” theory of the case usually collapses, but the impairment theory often survives — which is why suppression is the beginning of the fight, not the end. Florida charges DUI on two alternative theories: a blood or breath alcohol level of 0.08 or more, or impairment of normal faculties. Without the blood result, the State cannot prove the number. It can still call the officers, play the body-camera footage, and argue driving pattern, odor, speech, and field exercises. In a crash case it will also argue causation and the mechanics of the collision, which have nothing to do with the blood.

So the real value of Marlin is leverage and structure. A DUI manslaughter case with a suppressed blood result is a very different negotiation than one with a 0.18 on the lab report, and it is a very different trial. Our full treatment of that landscape is in what DUI manslaughter is in Florida and how DUI manslaughter cases are defended. And where the State cannot get the blood it drew, it will often try to subpoena the blood the hospital drew for treatment — a separate battle covered in can the State get your medical records in a Florida DUI case.

For more about our defense strategies, visit our DUI defense page.

Does Marlin Apply in Hillsborough County?

Yes. Under Pardo v. State, 596 So. 2d 665 (Fla. 1992), “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.” Marlin was decided by the Fourth District, which sits in West Palm Beach, but no other district court has adopted the probable-cause reading of Acevedo — Acevedo was the Fourth District’s own case, and the Fifth District’s Liles already pointed the same direction Marlin does. Until the Second District or the Florida Supreme Court says otherwise, a Hillsborough, Pinellas, or Pasco circuit judge is bound to follow it. Our attorneys are citing it in pending motions now.

What Should You Do If Police Took Your Blood After a Crash?

Write down everything you can remember about how it happened, before the details fade, and get counsel before you talk to anyone else:

1. Whether you were asked, and what you said. “Yes,” “no,” “I guess,” and silence are four different legal events.
2. What you were told would happen if you refused. A threat to “get a warrant anyway” or to charge you with refusal is the heart of a voluntariness challenge.
3. The timeline. When the crash happened, when officers arrived, when the draw occurred, and whether anyone mentioned a warrant. In Marlin the timeline was the case.
4. Where the draw happened and who did it. Roadside, ambulance, or hospital; paramedic, nurse, or technician. Section 316.1933 limits who may draw blood and how.
5. Whether the hospital also drew blood for treatment. That sample is governed by different rules, and the State will come for it.

Do not assume the blood result is unassailable because it has a number on it. In Florida today, the number is only as good as the way it was obtained.

Your blood is only part of what happens at a crash scene. Our guide to whether the Florida accident report privilege requires you to talk to police after a traffic crash covers what you must tell the officer, what you can decline, and when your words can be used against you.

Frequently Asked Questions About Warrantless Blood Draws in Florida

Can I refuse a blood test in Florida?

You can decline to consent, and after Birchfield and Marlin the State cannot use your refusal as permission to draw blood without a warrant. Refusal of a lawfully requested blood test is admissible in evidence, and Florida’s refusal statute is written broadly, but whether refusing a warrantless blood draw can be punished criminally is constitutionally contested after Birchfield. If you refused and were charged, that is a defense issue, not a foregone conclusion.

Police got a warrant for my blood. Is that the end of it?

No. A warrant moves the fight from “was there a warrant” to “was the warrant good.” The affidavit must establish probable cause on its face, the officer’s sworn statements must be accurate, and the execution must comply with the statute’s limits on who may draw blood. Warrant-based draws are challenged less often than they should be.

I was in the hospital when they drew my blood. Doesn’t implied consent cover that?

Only if you did not refuse and a breath or urine test was genuinely impractical or impossible — and even then, Marlin and Judge Shepherd’s concurrence make clear that being in a hospital or ambulance does not lower the constitutional bar. If you refused, the State needs a warrant or real exigency, wherever you were.

What if I was unconscious?

The Supreme Court’s plurality in Mitchell v. Wisconsin said that an unconscious driver who cannot take a breath test will “almost always” present exigent circumstances, because the driver needs medical care and the evidence is disappearing. That is a strong argument for the State, but it is still a totality-of-the-circumstances analysis, and the State still bears the burden of proving it.

Does Marlin help me if I was charged before September 2026?

Potentially, yes. If your case is pending, a motion to suppress can be filed or renewed now. If you already pleaded or were convicted, the analysis is more complicated and time-sensitive; talk to an attorney about your options immediately rather than assuming the window has closed.

The officer said section 316.1933 required him to take my blood. Was he wrong?

He was reading the statute the way the State read it in Marlin. The Fourth District has now said the statute is a directive to obtain blood in serious crashes with a warrant, absent consent or true exigency. The word “shall” in the statute does not override the Fourth Amendment.

If you or a family member is facing a DUI, DUI with serious bodily injury, or DUI manslaughter charge anywhere in Tampa Bay and blood was drawn without your agreement, the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — want to see the timeline before anyone talks about a plea. Call (813) 727-7159. The law changed on September 2, 2026, and it changed in your favor.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I taught search and seizure to police officers at the police academy — the same rules discussed on this page — and today our attorneys use that insider’s understanding of how stops and frisks are supposed to work to challenge the ones that don’t.

What Is Florida’s Stop and Frisk Law?

Florida’s Stop and Frisk Law, section 901.151, Florida Statutes, is the state’s codified version of the rule from Terry v. Ohio, 392 U.S. 1 (1968) — the landmark U.S. Supreme Court case that first allowed officers to briefly detain and pat down a suspect on less than probable cause. The Florida statute authorizes an officer to temporarily detain any person “under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit” a crime, for the limited purpose of identifying the person and learning the circumstances that aroused the officer’s suspicion.

The statute then draws boundaries that many street encounters blow straight through. The detention may last no longer than reasonably necessary to accomplish that limited purpose, and it may not extend beyond the place where it began or its immediate vicinity. If probable cause to arrest develops, the officer must arrest; if it does not, the officer must let the person go. Every one of those requirements is a potential defense issue, because the statute’s final subsection is a weapon our attorneys use regularly: no evidence seized in a search under the statute is admissible in any Florida court unless the stop and the search complied with the statute’s own rules.

What Does the State Need to Stop You? (Less Than You Think)

The legal standard for the stop itself is reasonable suspicion — specific, articulable facts suggesting criminal activity, judged by the totality of the circumstances. It is far less than probable cause, and far less than proof. But it must be more than a hunch, a feeling, or your mere presence in the “wrong” neighborhood.

Here is a quirk of the statute that surprises even lawyers: section 901.151 uses the words “probable cause” in its frisk provision, but Florida courts have held that in this statute the term actually means reasonable belief or suspicion — the point was repeated just weeks ago in State v. Lyles, No. 3D24-1602 (Fla. 3d DCA Aug. 5, 2026), a decision we discuss in detail below.

Florida courts judging reasonable suspicion look at the whole picture. In Cook v. State, No. 4D2025-1960 (Fla. 4th DCA Aug. 5, 2026), decided the same day as Lyles, the Fourth District repeated the factors courts weigh: the time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in light of the officer’s experience.

When Can Police Frisk You? The Stop Is Not Enough

A lawful stop does not automatically authorize a frisk — this is the single most misunderstood point in Florida stop-and-frisk law. Under section 901.151(5), the officer must separately have a reasonable belief that you are armed with a dangerous weapon and therefore pose a threat to the officer or someone else, and even then may search “only to the extent necessary to disclose, and for the purpose of disclosing,” the weapon.

Florida courts distill this into three conditions, each of which the State must satisfy: the detention itself must be lawful; the officer must have a reasonable suspicion that the person is armed; and the pat-down must be strictly limited to finding the weapon. The suspicion that you are armed must rest on some objective basis — courts point to things like aggressive behavior, furtive movements, or a visible bulge in the clothing — and not simply on whatever justified the stop in the first place. A frisk that fails any of the three conditions is unlawful, and what it turns up is subject to suppression under the statute’s exclusionary rule.

What Does the Lyles Decision Mean for Gun Cases?

In State v. Lyles, No. 3D24-1602 (Fla. 3d DCA Aug. 5, 2026), officers responding to a shots-fired report had a fairly detailed BOLO — a “be on the lookout” description — of the suspect. A detective spotted Lyles, who matched the description, and when they made eye contact the detective saw a bulge at Lyles’s waistband and watched him move his hand to adjust it. The detective stopped him and lifted his shirt, revealing a firearm. The trial court suppressed the gun, reasoning in part that the stop and the search happened simultaneously and that the detective never articulated safety concerns.

The Third District reversed. The court held that the totality of the circumstances — a BOLO for a shooting suspect, the matching description, the bulge, and the hand movement toward it — gave the detective reasonable suspicion that Lyles was armed and dangerous, and that nothing in the law forbids the stop and the protective search from happening at the same moment.

The evergreen lessons cut both ways, and our attorneys use each of them. For the State, Lyles confirms that a bulge plus a furtive adjustment, in the context of a shots-fired BOLO, will usually justify a frisk. For the defense, the decision reaffirms the framework that decides these cases: the frisk requires its own objective justification, distinct from the stop. When there is no bulge, no furtive movement, no report of a weapon — just an officer’s routine habit of patting down everyone he stops — the framework Lyles applied is the roadmap to suppression. In the permitless-carry era, when carrying a firearm is often perfectly legal, these stop-and-frisk boundaries have become the central battleground in Tampa Bay gun prosecutions — we cover the substantive gun charges in our guide to Florida’s gun crime laws.

Is Running From the Police a Crime in Florida?

It can be — and the answer traces to one of the most consequential Florida Supreme Court decisions of the modern era. In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), a teenager standing in the common area of an apartment complex in a high-crime area took off running the moment officers approached, then kept running after they ordered him to stop. The Florida Supreme Court held that unprovoked, headlong flight from police in a high-crime area itself creates the reasonable suspicion that justifies a stop — and that once the officers’ command to stop was therefore lawful, the continued flight in defiance of it constituted the crime of resisting an officer without violence under section 843.02, Florida Statutes.

The rule has hard edges worth knowing. Mere presence in a high-crime area is not reasonable suspicion, and as a general rule flight alone, without more, does not support a resisting charge — it is the combination of unprovoked flight plus the high-crime setting that changes the analysis. Whether the area actually qualifies as “high-crime,” whether the flight was truly unprovoked, and whether the officer’s command came before or after the legal justification arose are all litigable questions, and they decide real cases. We break down the resisting charge itself in our guide to resisting an officer without violence in Florida.

What Are Your Rights During a Stop and Frisk?

You have more rights during a street stop than most people exercise — and fewer than internet folklore suggests. You are not required to answer questions beyond basic identification during a lawful stop, and you never have to consent to a search: a frisk imposed over your objection must stand on the officer’s own reasonable suspicion that you are armed, or its fruits are suppressible. What you cannot lawfully do is physically resist, run from a lawful command to stop, or give a false name — each of those converts a bad stop into a real charge.

The most valuable thing you can do during a questionable stop is preserve the record rather than win the argument. Note the time and place, what the officer said, what you were doing, and who saw it. The legality of the stop will be decided later, in a courtroom, on a motion to suppress — not on the sidewalk. And because section 901.151(6) makes compliance with the statute a condition of admissibility, the details you remember often become the suppression motion our attorneys file.

How Do We Challenge an Unlawful Stop or Frisk?

We attack the stop and the frisk as separate events, because the law treats them separately. First, the stop: what specific facts did the officer possess before the detention began? Reasonable suspicion is measured only by what the officer knew at that moment — facts learned afterward cannot rescue a bad stop. Second, the frisk: what objective basis suggested you were armed — and if the honest answer is “nothing beyond the stop itself,” the three-condition framework applied in Lyles points toward suppression. Third, the scope: a pat-down that wanders beyond a search for weapons into pockets, bags, or containers has left its legal authority behind.

I taught officers exactly where these lines sit, and our attorneys read every report and every second of body-worn camera footage against that training. In Lyles itself, the body camera showed no visible bulge — the case turned on what the detective testified he saw. Those disputes are where suppression motions are won and lost, and they are why the earliest weeks of a case, while video and witnesses are still available, matter most.

What Should You Do If a Stop and Frisk Led to Charges?

Say nothing about what was found — not whose it is, not why it was there — because possession cases are built on statements far more often than on fingerprints. Then get the stop reviewed quickly. Body-worn camera footage, surveillance video from nearby businesses, dispatch and BOLO records, and CAD logs establishing exactly what the officer knew and when are the raw material of a suppression motion, and they are freshest — and sometimes only preserved — in the first weeks after an arrest. Under the statute’s exclusionary rule, a stop or frisk that violated section 901.151 means the evidence it produced cannot be used against you, and in a possession case that is usually the whole prosecution.

Frequently Asked Questions About Stop and Frisk in Florida

Can police stop me for no reason in Florida?

No. An investigatory detention requires reasonable suspicion — specific facts reasonably indicating you have committed, are committing, or are about to commit a crime, under section 901.151, Florida Statutes. Officers may always attempt a consensual encounter and ask questions, but unless the encounter ripens into a lawful stop, you are free to decline and walk away. Our attorneys review body camera and dispatch records in every case to pin down which kind of encounter it really was.

Do I have to answer police questions during a stop?

Beyond identifying yourself during a lawful stop, you are not required to answer investigative questions, and declining to answer is not a crime. Anything you volunteer, however, can supply the probable cause that turns a detention into an arrest. The safer course is polite silence and an early call to a defense lawyer.

Can police search my pockets during a frisk?

Not as a general search. Section 901.151(5) limits the frisk to what is necessary to find a dangerous weapon — an outer-clothing pat-down, extended only as needed to disclose the weapon. A frisk that becomes a hunt through your pockets for drugs or other evidence exceeds the statute, and what it finds is subject to suppression under section 901.151(6).

Is it illegal to run from the police in Florida?

It can be. Under C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), unprovoked flight from officers in a high-crime area creates reasonable suspicion for a stop, and continuing to flee after a lawful command to stop is resisting an officer without violence — a first-degree misdemeanor. Whether the area was truly “high-crime” and whether the command was lawful are contested questions our attorneys litigate.

I was carrying my gun legally — can police still frisk me?

The sight of a firearm is no longer automatic evidence of a crime in Florida’s permitless-carry era, which is precisely why the frisk rules matter more than ever. The officer still needs reasonable suspicion of criminal activity for the stop and a reasonable belief you pose a danger for the frisk. If a lawful carry led to charges anyway, The Brancato Law Firm, P.A. examines both the stop and the charging decision — start with our guide to Florida’s gun crime laws.

Can evidence from an illegal stop and frisk be thrown out?

Yes — Florida’s Stop and Frisk Law contains its own exclusionary rule. Section 901.151(6) makes evidence from a search inadmissible unless both the detention and the search complied with the statute. The Brancato Law Firm, P.A. builds suppression motions on exactly that provision; call (813) 727-7159 for a free review of how your stop actually happened.

For more about our defense strategies, visit our Hillsborough County Criminal Defense Attorney page.

Related reading: What Are the Gun Crime Laws in Florida? · What Is Resisting an Officer Without Violence in Florida? · Florida’s Second DCA Limits the “Plain Smell” Cannabis Search Doctrine · What to Do After Being Arrested in Tampa, Florida

The Stop Decided Your Case Before You Ever Saw a Courtroom

If a street stop, a pat-down, or a “routine” detention in Hillsborough, Pinellas, or Pasco County produced the evidence against you, the lawfulness of those first ninety seconds may decide everything that follows. Call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato, who taught these rules at the police academy — at (813) 727-7159 before the body camera footage and dispatch records that can prove your stop was unlawful disappear into routine retention purges.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.