Understanding DUI Blood Draws

“A DUI blood draw is a medical procedure that measures the amount of alcohol or drugs in a person’s blood to determine if they are under the influence of a substance. A phlebotomist, a medical professional who specializes in drawing blood, performs the procedure” [1.].

Key Points About DUI Blood Draws

When a Blood Draw Is Performed: Blood draws may occur if a driver refuses a breathalyzer, the officer suspects drug impairment, or the driver chooses a blood test after being arrested.
How the Test Is Conducted: The phlebotomist cleans the area, inserts a needle into a vein, and collects blood into a vial, which is then preserved with anticoagulants and sent to a lab for analysis.
Why Blood Tests Are Preferred: Blood tests are considered more accurate than breath or urine tests and do not require the suspect’s cooperation during testing.
Availability of Results: Blood test results typically take a few days to weeks to be processed and returned.
Warrant Requirement: In many cases, law enforcement may need a warrant before conducting a forced blood draw on a DUI suspect.

What is a Warantless Blood Draw?

A warrantless blood draw occurs when law enforcement takes a blood sample from a person suspected of DUI without first obtaining a warrant. While the Supreme Court has generally discouraged this practice, there are certain situations where it may be legally permissible.

When Is a Warrantless Forced Blood Draw Legal?

“Under California’s implied consent law (Vehicle Code § 23612(a)(1)(A)), drivers are considered to have given consent to chemical testing of their breath or blood if lawfully arrested for DUI” [2.].

A warrantless forced blood draw may be legal in DUI cases if the officer has a good faith belief that it is justified, even if this belief is later proven incorrect.

While this provision may seem to conflict with the Fourth Amendment, which protects against unreasonable searches and seizures, the courts have ruled that certain exceptions apply.

Specifically, the “exigent circumstances” exception allows warrantless searches, including forced blood draws, when waiting for a warrant could compromise evidence.

The U.S. Supreme Court first addressed this in Schmerber v. California (1966), where a warrantless blood draw was upheld due to the need to prevent the dissipation of alcohol in the defendant’s system.

Is a Warrant Needed for a DUI Breath Test?

No, a warrant is not required for a breath test following a lawful DUI arrest in California [3.]. Under California’s implied consent law, drivers are legally obligated to submit to a breath test to determine their blood alcohol concentration (BAC) after a DUI arrest. Refusing to comply with this law can result in increased penalties, including:

Enhanced DUI penalties beyond the standard consequences
Mandatory driver’s license suspension, regardless of the outcome of your DUI case

Can You Refuse a Breath Test Before a DUI Arrest?

Yes, you can refuse to take a preliminary breath test (PAS) before being arrested for DUI. The PAS is a roadside breath test used to help officers determine whether to make an arrest, similar to other field sobriety tests. Refusing the PAS carries no penalties unless:

You are under 21 years old
You are on probation for a previous DUI conviction

If you’re 21 or older and not on DUI probation, refusal to take the PAS cannot be used as evidence of guilt at trial. However, if you agree to the test, the results may be used in court to convict you of DUI.

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References:
1. https://www.nolo.com/legal-encyclopedia/how-blood-testing-is-used-in-dui-cases.html
2. https://www.greghillassociates.com/when-might-a-warrantless-forced-blood-draw-be-legal.html
3. https://www.shouselaw.com/ca/blog/warrant/what-is-californias-relaxed-warrant-requirement-for-forced-blood-draws/

California’s Relaxed Warrant Requirement for Forced Blood Draws