A DUI arrest can be challenged on multiple grounds depending on your situation. You may or may not have experienced a wrongful arrest or an inaccurate chemical test to determine your blood alcohol concentration (BAC). A new form of defense includes a wrongful blood draw – one that is done without your permission and without a warrant.
Is the blood draw mandatory?
It could be. When you are pulled over on suspicion that you are driving under the influence, you impliedly consent to chemical or field sobriety tests to determine whether or not you are actually under the influence. While a blood draw may not be mandatory, it may be one of the tests that an officer will want to perform to find out whether or not you were under the influence. Arizona’s implied consent law does require the state to obtain a warrant to get a blood sample first. A.R.S. § 28-1321(D). Otherwise, a refusal to submit to a blood, breath, or urine test after a law enforcement officer has probable cause to believe he or she is driving under the influence will be charged with a class 1 misdemeanor. A.R.S. § 28-1388(E). However, court cases are finding that blood draws specifically may be more of an invasion of privacy and may be refused in certain situations.
Can a police officer force a blood draw without a warrant?
Most likely not. The United States Supreme Court stated that police officers could not take blood from a suspected DUI driver unless they received a warrant first.1 This comes under the purview of the Fourth Amendment search and seizure. Under the Fourth Amendment, a police officer will need probable cause in most circumstances to search you without a warrant. However, the U.S. Supreme Court has not always had this view. In 1996 the Court had held that warrantless blood searches for DUI suspects did not violate the Fourth Amendment as long as law enforcement might reasonably believe he is confronted with an emergency.2 These are known as exigencies, or emergencies, which means searching a person, a car, or a home without a warrant is okay.3 These can include evanescent evidence (i.e. evidence that could disappear quickly), emergencies such as explosives in a home, or pursuit of a fleeing felon. The Court in the more recent Missouri v. McNeely viewed a person’s body processing alcohol as something outside of exigent, or emergency, status.4 In other words, the officers would need a warrant before searching someone’s body for alcohol. The Court also noted that blood draws were an invasion of bodily integrity that implicates your expectation of privacy.5
Arizona cases had not been so quick to conclude that police need a warrant to draw blood. Cases before held on to the implied consent standard when it came to drawing blood from those suspected of driving under the influence.6 A 2009 Arizona Court of Appeals case found, however, that unless a person expressly agrees to have his or her blood drawn, the police officer needs a search warrant before taking your blood if you are held on suspicion of driving under the influence.7 Later in 2013 the Arizona Supreme Court issued a similar ruling: you need to give clear and voluntary consent immediately prior to a blood draw to be subject to one.8 Otherwise, a blood draw is an illegal search absent a warrant.9
What counts as consent?
The Arizona Supreme Court in 2013 noted that consent must be clear and voluntary, but noted that juveniles may not be able to give absolute consent.10 Whether or not a juvenile has consented depends on multiple factors, such as age and failure to notify parents.11 Thus, determining consent must be viewed in a totality of the circumstances analysis.
Contact the experienced and dedicated drunk driving attorneys at Ariano & Reppucci, available 24 hours a day, 7 days a week.
1 United States Supreme Court Prohibits Forced Blood Draws Without A Warrant, DUIDEFENDER.ORG (Apr. 17, 2013 3:51 PM), http://www.duidefender.org/2013/04/blood-draw-mcneely/.
2 Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
3 See United States Supreme Court Prohibits Forced Blood Draws Without A Warrant, supra note 1.
4 See id.
5 Missouri v. McNeely, 133 S. Ct. 1552 (2013).
6 Lawrence Koplow, No Consent, No Warrant, No Blood, DUIBLOG.ARIZONADUICENTER.COM (Sep. 4, 2009), http://duiblog.arizonaduicenter.com/2009/09/articles/arizonas-new-dui-laws/no-consent-no-warrant-no-blood/.
8 Howard Fischer, Arizona Supreme Court Bars DUI Blood Tests Without Warrant, AZDAILYSUN.COM (May 31, 2013 5:00 AM), http://azdailysun.com/news/local/state-and-regional/arizona-supreme-court-bars-dui-blood-tests-without-warrant/article_a45c0a2f-1a47-5ef9-a52d-c2669ed312d6.html.