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Does one have a choice in what DUI test is administered? Can the police take blood without asking?

San Francisco, CA |

I had to be taken to the hospital after the accident (had some injuries) and blood was drawn then. I have no recollection of being asked my permission or agreeing.

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Attorney answers 6


under those circumstances A choice is not required since a breath test is
not available. However the police still need to ask for your consent if you
are unable to give consent meaning knocked out or other circumstances the
police would have had to of gotten a warrant for the blood draw you should
speak to an attorney about the circumstances of the blood draw


Generally, if they are of the opinion that you were in a condition that makes you unable to perform the breath test, then they proceed with the blood test. However, the reasoning should be reflected on their report. It is possible that at the hospital due to your injuries, the hospital had to conduct the blood test, then your blood test becomes incidental to required medical tests that you may have needed due to injuries. Need more facts about your condition in order to assess whether they acted within the parameters or not!


Good question. Our office occasionally has DUI clients who refuse to submit to a breath or blood test when arrested and police then direct a blood draw against the client’s will. Police sometimes justify the forced blood sample, telling the client that in California (as in many other states), the DMV conditions issuance of a driver’s license upon the driver’s “implied consent,” or agreement to provide a blood or breath sample if requested by law enforcement. Other times, police are more sophisticated and, cognizant of the requirements of a warrant, justify their conduct by claiming there is an emergency because the client’s blood alcohol level is dissipating, so they must conduct the search and seizure to preserve evidence of a crime.

The latter justification arises through an often misplaced reliance on Schmerber v. California (1966) 384 U.S. 757, at 770, wherein the U.S. Supreme Court held that such a warrantless blood test was proper when the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’”

The passage of time has changed what was originally perhaps expected to be a limited exception to the warrant requirement of the Fourth Amendment (applicable to the states via the Tenth Amendment) into wholesale carte blanche for officers to bypass any consideration of a warrant when seeking a blood sample.

Without apologizing for police, it is easy to understand how this may have evolved in the last forty-seven years, given the increased public awareness of the dangers of DUI, the activities of MADD and SADD, and statutes lowering blood alcohol levels required for a DUI conviction. Police feel pressure to arrest drunk drivers, gather evidence for prosecution and “make our streets safe.” In fact, some police departments have gone so far as to reward officers with a paid day off work for every ten DUI arrests they make. Newspapers publish the names of the officers who make the most DUI stops.

On April 17, 2013, the U.S. Supreme Court issued a ruling in Missouri v. McNeely (2013 DJDAR 4918) that seems to restore the Fourth Amendment into the decision making of police officer, if ever-so slightly. Naturally, this office, as criminal defense attorneys regularly defending those accused of DUI, hopes McNeely will blunt the seemingly sanctimonious and aggressive conduct of police investigating DUI.

Missouri police spotted Tyler McNeely, driving his pickup truck, at 2:08 a.m. McNeely was allegedly speeding. He was stopped. He admitted to police that he had had “a couple beers” at a nearby bar. Police had him perform field sobriety tests, which (surprise, surprise!) he failed.

Police then asked him to provide a breath sample for testing his blood alcohol level. Missouri, it should be noted has an implied consent driver’s license policy like California. McNeely refused. He was then arrested. While in the police car, McNeely told the arresting officer that he would not provide a breath sample at the police station either.

At this point, the officer made a big mistake. Instead of requesting a warrant, he changed his course and took McNeely to a local hospital. The officer made no attempt to secure a search warrant from a judge.

Upon arriving at the hospital, he asked McNeely if he would allow hospital staff to take his blood. McNeely said no. The officer then a hospital lab technician to take a blood sample. At the time the sample was taken, it was just 27 minutes after he was first stopped by police. McNeely’s blood alcohol content was 0.154, almost double Missouri’s legal limit for DUI.

McNeely was then charged with DUI, or DWI (Driving While Intoxicated) as it is termed in Missouri. To find out what then happened, visit my website at look at the articles on my DUI practice page.

John M. Kaman

John M. Kaman


Good answer.

Andrew Lawrence Weitz

Andrew Lawrence Weitz


Great answer! How about I just read the case ;)


First of all, you are deemed to have given implied consent to the testing simply by driving on the public highways and streets in California. The law is laid out verbatim on the DMV's website.

Personally, I prefer blood testing because it tends to be more accurate.

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Forced blood tests are allowed in California under certain circumstances. Being too injured to consent or refuse is one of them.

This answer is based on California law and procedure and does not create an attorney-client relationship.


Given the facts you set forth, the only test available appears to be a blood test. However, that does not absolve the police of either getting consent or getting a warrant. If you were unconscious (as is implied by your lack of recollection), then you couldn't give consent. That means the police needed a warrant.
If the government plans on relying on any "hospital blood" that was drawn, then there are HIPAA concerns that should be looked into. In addition, the testing of "hospital blood" often yields a BAC markedly different from the blood drawn for law enforcement purposes. (Hospitals use serum blood, while law enforcement relies on whole blood.) Converting the BAC from "hospital blood" to whole blood is not a straight forward process.
You should definitely speak with a qualified DUI attorney to better understand whether your constitutional rights have been violated (especially in light of the recent Missouri v McNeely decision of the US Supreme Court).
Good Luck

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