Recently on our DUI forum a driver asked if they had the legal right to request a blood test after a drunk driving arrest rather than submit to a breath test. Whether or not the driver has the legal right to request a blood test rather than a breath test will depend on state law.
Blood tests – State laws vary
For instance, in Virginia, the breath test was established by the Virginia General Assembly as the main test for determining a driver’s blood alcohol concentration (BAC). Under Virginia law the driver will not have the choice to request a blood test. The law further states, however, that if the breath test is not “readily available” the driver may receive a blood test.
What about in other states? In the state of Texas the law enforcement officer has the option to decide whether they will administer a breath, blood or urine test to the driver. If you refuse to take the test offered by the officer but instead vocalize that you prefer another type of test this request can be viewed as a blood alcohol content (BAC) test refusal.
There is one more wrinkle in Texas state law as outlined in Section 724.019 of the Transportation Code. If you agree to take the chemical test offered by the officer you may also request an independent blood test be done. The test must be done within 2 hours of the DWI arrest by a qualified “physician, qualified technician, chemist, or registered professional nurse.” You also have the right to select this person.
Keep in mind, the state of Texas is not required to transport you to this person and the peace officer or a law enforcement agency is not liable for damages arising from a person’s request to have a blood specimen taken. Unfortunately, the state of Texas does not make it necessary for the law enforcement officer to notify you of your legal right to an independent blood test.
Forced Blood Withdrawal after Drunk Driving Arrest
As mentioned above, state laws vary in whether or not the driver will have the legal right to request the type of blood alcohol content test (BAC) they want to take after a drunk driving arrest, snf another interesting question is whether you can be forced to submit to a blood test against your will.
The answer is yes, in some states. In Florida, for instance, drivers may be forced to submit to a blood test if the police have established probable cause and causation requirements are met.
Another interesting question is whether or not the police can use “reasonable force” to gather the blood sample. States that allow a forced blood sample have various definitions about what they consider reasonable force.
What if I refuse the Blood Alcohol Content Test (BAC) after DUI arrest?
Most states have passed implied consent laws which require drivers who are arrested for DUI to submit to a blood alcohol test. If the driver refuses they are facing an immediate license suspension (which is separate from DUI penalties they will face if convicted of DUI).
In Texas, for instance, drivers who refuse the blood alcohol content test (BAC) will have their license suspended for 180 days for a first time DUI arrest.
- DUI – Refused Blood Alcohol Content (BAC) Test. Was this a good idea? (duiattorneyhome.com)
- Blood Alcohol Content Test Lower than illegal Limit (duiattorneyhome.com)
- Drunk Driving High BAC – How does this affect my DUI penalties? (duiattorneyhome.com)