The Law Office of James Davis, P.A.

Can a Blood Test Be Performed After a DUI Stop Without Consent?

No one gives up their legal rights when they are stopped by police officers--no matter what the charge.

By: James Davis

No one gives up their legal rights when they are stopped by police officers–no matter what the charge.  In fact, it is when you are detained by authorities that your constitutional rights actually matter most. For one thing, there are limits to what authorities can force residents to do in order to obtain evidence which might be used in a criminal case.

How far can officers go to forcibly obtain information about a driver’s blood alcohol content?  Can they force you to have blood withdrawn even if you do not consent?

what is dui

Blood Tests & DUI
The legal issues related to blood tests and DUI can be somewhat confusing.  As a general matter, you are allowed to refuse to take a blood test after being stopped for drunk driving.  As a general rule, officers must obtain your consent before drawing your blood to determine your BAC.

There are two main exceptions to that consent rule.  First, if you are involved in an accident that causes death or serious bodily injury, then a forcible blood test may be performed.  Second, consent is not needed if you are unable to give it (i.e. unconscious).  In this second instance, the consent is technically assumed as a result of Florida’s “implied consent’ laws.

Recent Supreme Court Case – Missouri v. McNeely
The issue of forcible blood tests following DUI arrests has made national headlines in recent weeks. The is because the U.S. Supreme Court recently heard arguments in a case involving the constitutionality of forcible blood tests conducted with a warrant.

The 4th Amendment to the U.S. Constitution prohibits unreasonable searches and seizures.  Generally, this means that warrants must be obtained before authorities search a person or their property–that would include ordering blood be taken from the body.  But there are exceptions to warrant requirements.  For example courts have previously found that if there are “exigent circumstances” (time-sensitive matters), then police officers may be able to search without a warrant.

The issue in the latest case–Missouri v. McNeely–is whether that exigent circumstances exception applies to warrantless blood tests without someone’s consent.  The trial court and state supreme court all held that such searches violated the constitutional protection afforded to citizens.  However, the ultimate decision rests with the U.S. Supreme Court, as their interpretation will dictate how the law applies across the country, including in Florida.  Oral arguments were heard in the case earlier this month, and a ruling is expected later this year.

No one knows for sure what the court will decide on this issue. However, many Justices have respected that using a needle to physically pull blood was a serious intrusion. Disregarding the obvious protections of the 4th Amendment in those circumstances based only a police officer’s judgment seems inappropriate as the constitutional protection exists specifically to protect residents from officer conduct.