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Forced Blood Draws
The “implied consent” portion of the California Vehicle code mandates that drivers who are lawfully arrested for a DUI / DWI must take a chemical test in order to determine their blood alcohol content (BAC). By lawfully driving in California, you have impliedly consented to take a chemical test if arrested for a DUI. If you are arrested for a suspected DUI, your only choice is whether you want to have a breath or blood test. Some police stations have only one form of test, in which case, you may not have a choice of test.
Because alcohol metabolizes quickly, the police are under pressure to obtain evidence before it dissipates. When drivers refuse to submit to chemical tests, police are authorized to take blood samples by force – either by holding the driver down, or by threatening to do so. During a forced blood draw, trained medical personnel draw the blood for use in the later prosecution for drunk driving. And, because of the temporary nature of alcohol in the blood, the police do not need to obtain a warrant to obtain a sample of blood.
The United States Supreme Court decided the forced blood draw issue in the landmark case of Schmerber v. California in 1966. This case held that it is permissible for the police to take a warrantless taking of a person’s blood for the purpose of chemical testing to determine intoxication, provided that the taking of the sample is done in a medically approved manner, after a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these guidelines are followed, then a forced blood draw does not violate the Fourth Amendment right against unreasonable search and seizure.
Because of the nature of a warrantless search of a person’s blood, the Supreme Court stated that the proper protocol must be followed in a forced blood draw. If this protocol is not followed, then the DUI defendant may validly claim a violation of his or her Fourth Amendment right. Thus, it is not only proper, but mandated, to suppress this evidence. An attorney specializing in DUI will be able to make the proper motion to suppress the evidence. Once suppressed, evidence may not be considered by the judge or heard by the jury. According the legal principle of “fruit of the poisonous tree,” any evidence gained as a result of the unconstitutional evidence must also be suppressed.
An experienced DUI / DWI defense attorney can review the procedures used in a forced blood draw to ensure that a driver’s rights have not been violated. If the proper protocol was not followed, the attorney will argue that the evidence should be excluded.
Because alcohol metabolizes quickly, the police are under pressure to obtain evidence before it dissipates. When drivers refuse to submit to chemical tests, police are authorized to take blood samples by force – either by holding the driver down, or by threatening to do so. During a forced blood draw, trained medical personnel draw the blood for use in the later prosecution for drunk driving. And, because of the temporary nature of alcohol in the blood, the police do not need to obtain a warrant to obtain a sample of blood.
The United States Supreme Court decided the forced blood draw issue in the landmark case of Schmerber v. California in 1966. This case held that it is permissible for the police to take a warrantless taking of a person’s blood for the purpose of chemical testing to determine intoxication, provided that the taking of the sample is done in a medically approved manner, after a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these guidelines are followed, then a forced blood draw does not violate the Fourth Amendment right against unreasonable search and seizure.
Because of the nature of a warrantless search of a person’s blood, the Supreme Court stated that the proper protocol must be followed in a forced blood draw. If this protocol is not followed, then the DUI defendant may validly claim a violation of his or her Fourth Amendment right. Thus, it is not only proper, but mandated, to suppress this evidence. An attorney specializing in DUI will be able to make the proper motion to suppress the evidence. Once suppressed, evidence may not be considered by the judge or heard by the jury. According the legal principle of “fruit of the poisonous tree,” any evidence gained as a result of the unconstitutional evidence must also be suppressed.
An experienced DUI / DWI defense attorney can review the procedures used in a forced blood draw to ensure that a driver’s rights have not been violated. If the proper protocol was not followed, the attorney will argue that the evidence should be excluded.
Case Results
1st offense DUI in North Court (Fullerton) – Client had a BAC of .10 reduced...
1st offense DUI Under 21 BAC 0.16 Harbor Court (Newport Beach) – Client was in the Fire Academy and facing both DMV and criminal charges...
3 arrests for DUI in a 3 month span. All cases out of Orange County...
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