Do the Police Need a Warrant for a DUI Blood Test? By Daniel Smith and Jon Pettis


Well that is a good question! It goes like this; you are accused of drunk driving.  You are told by the police that you have to take a blood or breath test.  You think, “Is that right, or are the police just telling me that to get evidence to use against me?”  You know police sometimes lie to suspects to get what they want.  You say you want to speak with an attorney first.  They say you cannot talk to a lawyer before the blood or breath test.  Now, you are even more suspicious. “I have a Constitutional right to speak with an attorney, don’t I? “ You also know that the police cannot search your house without a warrant.

How can they make you take a blood test without one?

Now the police are getting mad.  One officer is taking out some sort of form and reading a very long statement to you.  There is no way to follow the whole thing, but you catch some important parts.  He is telling you that back when you got your driver’s license, you agreed to take a blood or breath test if you were ever arrested for DUI. “What? I don’t remember anything like that ever.”  You are told you are going to lose your driver’s license if you don’t do one of the tests. You politely say that you won’t take one of the tests until you speak to a lawyer.  Then all hell breaks loose.  Several other officers join the officer who arrested you.  There seems to be a sergeant who is watching this all happen.  Depending on what police station you are at, one of two things happens.  The nicer scenario is that you are handcuffed and placed in a metal chair arms and the chair so you cannot move you arms.  The pressure and pain on your wrists, arms and shoulders is incredible.  Then someone you have never even seen before, much less know whether or not is a medical technician, comes and forcibly takes two blood samples from your arm.  Yes, that’s the nicer scenario.  The other possibility starts the same way.  Several other police join the officer who arrested you as a sergeant looks on.  They toss a pad onto the floor in front of you.  Then, each grabs an arm or leg and they throw you face down on the pad and hold your arms and legs so you cannot move.  The pain from them holding you and pressing you down on the floor is terrible.  Then that same person with a needle comes and forcibly takes the two blood samples from you.  You cry out for them to stop that you’ll take the breath test.

They tell you its too late and take the blood samples. Does this sound like something from a repressive totalitarian dictatorship?  No, this is standard protocol in most States, including California.  Earlier this year, the United States Supreme Court finally said, “Stop.”  In Missouri v. McNeely the court said police no longer can forcibly take a blood sample unless they get permission from a judge first in the form of a warrant.  This will probably be done over the phone, with police calling a judge, describing the reasons why they think you were DUI, and then being told by the judge, thus issuing a warrant to go ahead and take the blood test.

It is sad to say, but at San Diego Defenders, we are afraid of the what is happening to the United States Constitution. When an unpopular decision is made by a court which applies the Constitution to the operation of a device, like driving a car that was not around when our founding fathers wrote that incredible document, special interest groups may kick in to high gear. MADD or any number law enforcement unions, or correctional officers unions may lobby hard enough to pass a bill in each state that allows for warrants to be obtained so easily that the Fourth Amendment just disappears in the "Living Document" theory of interpreting the Constitution. "Just make it say what you want it to say" is the growing trend.

However there is hope. We still have a system of justice that allows both sides, with the aid of their lawyers, fight for their cause. And ours is protecting the rights of an individual under the protection of the United States Constitution. Yes, the shortest constitution of any country in the world produced the greatest country of freedom fighters the world has ever known. We will keep you posted!