UPDATE: Forcible Blood Draws for Suspected DUI Drivers who have Refused an Implied Consent Test

Posted almost 2 years ago. 1 helpful vote



Key Prior Cases that Were Reviewed for the New Ruling - The First Case

In 1952, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) was decided. This case dealt with police forcibly entering a house of an alleged drug trafficker and forcibly inducing a suspect to vomit after she ingested capsules once for whom evidence of illegal morphine use was suspected. The high court ruled that such actions "shocked the conscious" and overturned the conviction.


Next, the High Court focused on the TIME of Commission of the Alleged Crime

Breithaupt v. Abram, 352 U.S. 432, 1 L. Ed. 2d 448, 77 S. Ct. 408 (1957) was the next significant case. DUI-DWI was the topic here. The high court (under Earl Warren) decided that taking blood to determine if the suspect was intoxicated from a suspect while he was unconscious after an automobile accident involving an involuntary manslaughter charge did not "shock the conscience". This was a 6-3 decision, with Warren, Douglas and Black dissenting. The TIMING of the crime and method of collection were discussed. After pointing out the medically safe process of having a physician oversee the blood draw, thereby minimizing possible harm to Breithaupt, the court pointed out the "public safety" necessity: "The test upheld here is not attacked on the ground of any basis deficiency or of injudicious application, but admittedly is a scientifically accurate method of detecting alcoholic content in the blood, thus furnishing an exact measure upon which to base a decision as to intoxication."


Then the 5-4 Decision of Schmerber took us all the way to 2013 and McNeely

Finally, the most quoted case of all is Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). After a night of drinking, Schmerber crashed his vehicle into a tree. Because police had an educated hunch that he might be impaired, they ordered a hospital physician to collect a blood sample. Although no physical resistance by Schmerber was involved, he clearly tried to verbally decline the blood draw. In a close decision, the Warren-era court split 5 to 4 (Warren, Douglas, Black and Fortas dissenting), but ruled --- on these facts --- that the procedure did not violate Schmerber's Fifth Amendment (self-incrimination) rights or his rights under the Fourth Amendment (protection against unreasonable searches and seizures). Much valuable language in the Schmerber case can be used by criminal defense specialists attacking blood draws where the procedures were unreasonably violent, unsanitary or done by an unqualified phlebotomist. Arizona may be the culprit.


Today's DUI Defender Cannot Shy Away from Science - Winning requires Detailed Research and a Full Understanding of Prior Case Law

The Supreme Court in McNeely kept its ruling to the narrow issues involved in Missouri's interpretation of permissible police actions to procure an involuntary blood draw for purposes of gathering prosecution evidence. The ideal case for a criminal defense attorney to pursue will be when the suspected DUI-DWI driver LOOKS and SOUNDS sober, is over age 21, and has either been stopped at a roadblock or possible pulled over for an equipment problem, such as lack of a tag light. Then, if the driver exercises his or her rights, and admits no consumption, refuses voluntary roadside tests, and remains silent during the arrest, forcing blood to be drawn in an unsanitary police station or over the hood of an Arizona police officer's patrol car will set the stage for the next high court grant of certiorari.

Additional Resources

Contact a member of http://www.NCDD.com, if you are facing such forcible blood draw circumstances. The National College for DUI Defense submitted an amicus curie brief on the McNeely case.

Ms. Ellwanger's Profile

Ms. Ellwanger's Web Site

National College for DUI Defense - a non-profit

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The definition, charges, and penalties for driving under the influence (DUI) vary by state and depend on a number of factors.

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