Can Police Perform a Forced Blood Draw on a DUI Suspect?
When a person is arrested on suspicion of driving under the influence, the officer will request that the driver provide a blood or breath sample for chemical testing. Under California’s implied consent law, drivers arrested for DUI are deemed to have consented to having their blood or breath tested.
Breath or Blood Test RefusalRefusing to provide a breath or blood sample will result in the driver being charged with driving under the influence in violation of California Vehicle Code Section 23152(a) in addition to a refusal allegation that will potentially increase the penalties assessed. In addition, the driver would lose his or her driver's license for a full year without the opportunity to get a restricted license during the suspension period.
Search Warrants Generally RequiredIn the past there have been situations where a driver has refused to submit to chemical testing and the officer has subsequently ordered a forced blood draw to obtain a blood sample for analysis. The United States Supreme Court has recently ruled in the 2013 McNeely v. Missouri decision that an officer generally needs a search warrant before a forced blood draw can be performed unless there are exigent circumstances supporting the need for an immediate blood draw. McNeely was an 8-1 decision and did not provide law enforcement agencies with a clear answer as to when a warrantless blood draw is permissible. The Supreme Court stressed that search warrants are generally required.
When a Search Warrant May be SoughtFollowing the McNeely decision the California Highway Patrol, who are responsible for more DUI arrests than any other agency in California, stopped performing forced blood draws for misdemeanor level DUIs. During a felony investigation, the CHP will make all efforts to obtain a search warrant for a blood draw when the driver refuses testing. A search warrant may be sought where the defendant has enough prior DUI convictions that the current offense would qualify as a felony or where the DUI incident resulted in serious injury or the death of another person.
Under the Influence of Drugs & the McNeely DecisionDrivers who are arrested for a DUI must realize that the McNeely decision does not change the fact that refusing to submit to chemical testing is itself illegal and can result in the driver being charged with a DUI offense in addition to a refusal allegation. One class of DUI offenses that may be impacted by the McNeely decision is DUI offenses where the driver is suspected of being under the influence of drugs, and not alcohol. Because there is no breath test that can test for the presence of drugs, police typically rely on blood tests to establish a case of driving under the influence of drugs in violation of California Vehicle Code Section 23152(e). In these cases a driver under the influence of drugs may be willing to take the breath test but would refuse blood testing. When faced with this situation, the officer would either have to obtain a search warrant authorizing a forced blood test or would have to be able to articulate clear exigent circumstances justifying a warrantless blood draw. This issue may soon be moot, as many law enforcement agencies are experimenting with mouth swabs that can effectively test for the presence of drugs.