DUI Blood Draws - Did You Consent?


Whenever a new client comes to my office on a DUI, I ask them if they took a blood or a breath test.  Those that take a blood test, I'll ask, "How did the police get your blood?"  Invariably the person will say, "They just took it."  

Why is this an issue?  Well, let's start with the rule.  The rule is, if the police want to search a person, a person's effects, or a person's house, they need a WARRANT.  Sticking a needle into a DUI suspect's arm and drawing their blood is a SEARCH!  What's the rule?  If it's a search, they need a warrant!  The United States Supreme Court affirmed this rule in Missouri v. McNeely in 2013.  

For every rule there is an exception.  The exception the police most rely upon in DUI blood draw cases is - CONSENT.   Consent to a search is best illustrated by the following hypothetical.  If an officer comes to your door and asks to search your house and you say sure, come on in officer, the officer no longer needs a warrant because you consented to the search.  

But, consent must be free and voluntary.  So, if that same officer came to your door and held a gun to your head and said "Let me search your house."  And, only after such coercion you agreed to the search, that is not valid Fourth Amendment consent, because it is not free and voluntary.  

Now, the police aren't going to hold a gun to anyone's head and tell them to take a blood test.  But, there are more subtle yet very coercive tactics police use to vitiate consent in DUI blood draw cases.  

Often, police will tell persons arrested for DUI that they are "REQUIRED" to take a blood or breath test.  DUI suspect are not REQUIRED to do anything, especially submit to a warrantless search.  When the police tell someone they are REQUIRED to submit to a warrantless search, they in effect tell the suspect that they have no right to refuse the search altogether. 

Again, imagine the above scenario where the police come to your house without  a warrant and ask to search, only this time they tell you you're required to let them in.  Does it feel that free and voluntary?  Would you feel free to tell them no?

Couple that assertion with the fact that a DUI suspect is likely in handcuffs, in the back of a police car, and being ordered to perform field sobriety tests and answer questions, the consent does not seem so free and voluntary after all.  

If a court finds that a DUI suspect did not freely and voluntarily consent to a warrantless blood test, the blood must be excluded from evidence, and cannot be used against the person.  This can significantly help someone charged with DUI.  

Ensure that your DUI attorney or DWI lawyer is well versed in this area of law.  Ensure your Fourth Amendment Rights are upheld and fought for.  

Posted by Mike Donaldson.