Whether or not the state is allowed to use “reasonable force” to obtain a blood sample from a driver arrested for drunk driving or whether the police must first get a warrant to draw blood varies by state.
At question are the rights of the driver under the 4th and 5th amendment. The 4th amendment protects against illegal search and seizure and the 5th amendment protects against self-incrimination. Some courts have denied that a driver’s 5th amendment rights are violated because, “evidence in a DUI blood sample is genuine and scientifically testable, and not communicative or testimonial, which is what the 5th Amendment specifically protects.”
Blood withdrawals vary by State
To illustrate how laws vary, in the state of California police officers can force arrested drivers to submit to a chemical test after a California DUI arrest if the DUI arrest is lawful and there is no unreasonable risk of infection or pain or the officer does not use “excessive force.” Additionally, the officer must prove that the arrest required “prompt chemical testing.” The officer must also have evidence to suspect the driver is drunk and the test must be given in a “medically approved” manner.
The Missouri Supreme Court, however, recently decided that Missouri police officers could not force a DUI suspect to submit to a blood test at a hospital until they had obtained a search warrant. The state did decide, however, that a warrant would not be necessary if the office had reason to believe the driver would destroy evidence, was a danger to life, or was likely to escape. The courts decided that if these conditions existed the officer need not obtain a warrant prior to the blood draw.
Although some courts have argued that due to the dissipation of alcohol in the driver’s blood stream over time, this could be enough reason to expedite the forced removal of blood without a warrant, but the Missouri Supreme Court disagreed with this argument.
Do my rights vary by state?
As evidenced by the examples listed above, your rights to refuse a blood test after a DUI stop will vary by state. If you live in Missouri you are protected by the ruling of the Missouri Supreme Court which protects your right to refuse a blood test; California drivers are not so lucky.
Protecting your Rights after a DUI stop
Even if you live in a state which allows forced DUI blood withdrawals the state has an obligation to perform blood withdrawals following procedures outlined in state statutes. Most states will provide the police with blood testing kits and detail how to make the withdrawal safely, how to preserve the blood sample and to transport the samples so they are not destroyed.
If you have further questions about whether or not your state allows forced blood withdrawals you can review your state’s Implied Consent Laws. Keep in mind, even if your state allows forced blood withdrawals most states require the testing be performed by a training medical technician such as a nurse, doctor or phlebotomist. There are a few states, however, which allow police officers who have been trained to withdraw blood from drivers at the scene of the DUI stop
- Missouri Drunk Driving – Can I get a Hardship License? (duiattorneyhome.com)
- Drunk Driving – What is a felony DUI? (duiattorneyhome.com)
- Second DUI – will I go to jail? (duiattorneyhome.com)
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