San Diego DUI Attorney Questions
- October 8, 2015
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San Diego DUI Attorney Blog
Can Police Officer Force Driver to a Blood Test?
Let’s take a possible scenario. You have just been to a birthday party and had something to drink. Now you’re headed home in your car, when you’re pulled over by the police. After failing field sobriety tests, the law enforcement officer asks you to take a breathalyzer test to establish the concentration of alcohol in your blood. You refuse and are immediately arrested and taken to a hospital.
Once there, the officer asks you to do a blood draw test to determine the blood alcohol concentration (BAC), informing you that if you refuse to do it, your driver’s license can be automatically taken from you for at least one year. Upon hearing this, you decline again.
Can the law enforcement officer physically force you to have your blood drawn for the BAC test? The US Supreme Court says this is not possible without a warrant. However, there are exceptions to this rule on the grounds of exigencies, when procuring a warrant wouldn’t be practical. Otherwise, obtaining a blood draw from a suspect would violate the Constitution as the Fourth Amendment stipulates a person has the right to be free of unreasonable searches and seizures.
On the other hand, there can be special circumstances or exigencies allowing the draw to be taken without a warrant. These exigencies compel a search without a warrant because the search is objectively reasonable. Still, in DUI cases a warrant is sometimes necessary.
In a DUI case in San Diego, the driver was pulled over for speeding and driving in two lanes. The police officer’s first impression was that the driver was clearly inebriated. His eyes were bloodshot, he couldn’t speak clearly and he reeked of alcohol. After the driver declined a breathalyzer test, he was placed under arrest and taken to hospital for further testing. Next, he declined a blood draw test.
The law enforcement officer didn’t try to obtain a warrant, he rather instructed the technician to draw the defendant’s blood anyway. The test came positive and it showed BAC was well above the allowed limit. DUI charges were pressed against the defendant.
BAC in one’s blood dissipates by 0.015 or 0.02 percent hourly from the point when the alcohol is completely absorbed. The prosecutor argued that this fact constitutes an exigency if the police officer has a reasonable doubt that a driver is intoxicated.
However, the justices in the case agreed that exigencies rendering a warrant impractical may exist, but that the simple fact BAC decreases by the hour doesn’t constitute an exigency that would justify a blood draw without a consent and a warrant.
The justices claimed that the case could have been handled differently so as to obtain the warrant on time. They stated the officer could have had his partner or colleague take the defendant to the hospital, while he started the warrant procedure. In that scenario, there would be no exigent circumstances.
The final decision of the court is that the natural reduction in BAC with time could be an exigent circumstance in another case, but not in this one in which a warrant could have been procured. So, dissipating BAC doesn’t automatically stand for an exigency. A blood draw without a warrant must be inspected and reviewed within an individual case and weighed against all the circumstances.
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