Let’s say you’re arrested for drunk driving, handcuffed and thrown in the back of the police car. The arresting cop then tells you that you have to submit to a blood test: You will have a needle injected into your arm and a blood sample will be withdrawn to be later analyzed for blood-alcohol concentration (BAC).
You will be booked for driving under the influence of alcohol. However, if the blood sample later shows a BAC of .08% or higher, you will be charged not only with DUI, but also with a second offense: driving with a BAC of .08%.
You are afraid of needles and refuse, insisting instead on being tested with a breathalyzer. Result: The cop books you for DUI — and for refusing to submit to blood-alcohol testing.
Can you be prosecuted for refusing to give a blood sample?
In many states today, refusing to be tested is, in fact, a separate crime — and you can be prosecuted for both DUI and for refusing. The courts have held that there is no Fifth Amendment right to refuse to incriminate yourself by submitting to BAC testing. In other states, it is not a crime, but can carry other sanctions — commonly, a longer driver’s license suspension.
But what if the cop does not give the suspect a choice — of a blood or breath test? What if, as increasingly happens — and has hypothetically happened to you in this case — the cop demands a blood sample? Does that change things?
Minnesota: DUI Blood Draw Refusal Cannot Be Criminalized
The Newspaper, Oct. 22 — Minnesota motorists cannot be held guilty of a crime if they refuse to allow a police officer to draw their blood on demand. A divided state Court of Appeals panel came to that conclusion last week after applying the reasoning found in the US Supreme Court’s McNeely decision, which struck down forced motorist blood draws.
Todd Eugene Trahan was pulled over after midnight on October 24, 2012, after a Ramsey County sheriff’s deputy noticed his erratic driving. After pulling Trahan over, it was obvious he was intoxicated. Trahan had a long history of driving under the influence (DUI) convictions. He was taken to a jail cell where he declined to allow a blood draw…
A judge sentenced Trahan to five years in prison for first-degree refusal. Under Minnesota law, it is a crime to refuse to submit to a blood, breath or urine test. Initially, the Court of Appeals found the law quite clear and upheld Trahan’s conviction, but the Minnesota Supreme Court told the lower court to reconsider.
The appellate court found in its second look at the case that a police officer could not have taken Trahan’s blood without obtaining a warrant from a neutral magistrate under the Fourth Amendment, as police had no valid excuse not to seek a warrant…
The court majority found the blood test refusal statute failed the strict-scrutiny constitutionality test because there are ways to get drunk drivers off the road without criminalizing the blood draw refusal.
"Police may offer a breath test to a suspected drunk driver and then, if the test is refused, the state may charge the person with the crime of test refusal," Judge Halbrooks explained. "The state may also prosecute a driver for driving under the influence without measuring the alcohol concentration or amount of controlled substances in a person’s blood. And when time allows, police can secure a search warrant to test the person’s blood."
The court made a distinction between the intrusiveness of a blood test and a breath test in finding the breath test refusal could still be criminalized.