For years, the question of whether or not police can draw your blood without
consent has been debated in legal discussions. Ultimately, the United
States Supreme Court curbed the debate when they clarified the Constitutional
limits for officers who want to measure the blood-alcohol levels of a
suspect after a
drunk driving arrest.
The court’s ruling came after two separate appeals from men who had
been arrested for driving under the influence (DUI) and were threatened
with penalties if they did not submit to a blood test. Although the men
refused to be tested, their blood was taken without their consent. Because
of their initial refusal to provide a BAC measurement, they were reprimanded
with additional charges from prosecutors.
The men argued that penalizing them for refusing testing violated their
<a href=4thamendmentrights>4th Amendment rights</a> (the right that protects citizens against unreasonable
searches by police). Although the judges did not fully concur with their
arguments, they did agree that blood testing is “significantly more
intrusive” on a person’s privacy than a breath test, and decided
that law enforcement must first obtain a lawful warrant before conducting
such a blood test.
While the ruling ultimately established that police officers need a warrant
in order to test the blood of a person who gets pulled over for driving
under the influence, it also reinforced that police do not need a warrant
to conduct a breath test using a breathalyzer under similar circumstances.
According to Justice Samuel Alito, “because breath tests are significantly
less intrusive than blood tests and in most cases amply serve law enforcement
interests, we conclude that a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk driving.”
While the police cannot compel a blood test, they can offer a suspect the
choice between a blood test and a formal breath test, and if the accused
selects the blood test, then they have consented to that type of search
and have a more restricted ability to fight the charges on 4th Amendment grounds. Many states, including Nebraska, require as a condition
of holding a driver’s license that a person consent to breath testing
whenever requested by police. While a driver can legally refuse such testing
to avoid criminal charges, they may still lose driving privileges as they
are not a protected right.
Nonetheless, there are many procedural rules that the police must follow
in order to arrest someone for a DUI/DWI. There are additional 4th Amendment considerations that can invalidate the prosecution’s case
against a suspect, even if the person consented to a breath or blood test
at the time of arrest. The circumstances of the stop must meet certain
legal thresholds, and there are standards surrounding the gathering and
protection of evidence that can be violated during the course of an arrest
and subsequent prosecution.
It is the duty of the attorney to examine the entire set of facts surrounding
an arrest to identify steps during which the police or prosecution may
have made mistakes that would lead to an unfair conviction. Experienced
DUI lawyers will carefully probe all pieces of evidence to find potential
missteps that violate the constitutional rights of the defendant.
Do you have more questions about law enforcement blood tests? Has your
blood been tested by police without your consent? Contact our Lincoln and Omaha DUI attorneys
to get legal assistance today.