Consenting to a DUI Blood Draw
Prosecutors in California and other states are thrilled when they receive a DUI case from law enforcement officers which includes results from a blood draw of the suspect driver. Unlike breath testing machines like the Intoxilyzer, which are notoriously unreliable devices for measuring actual breath alcohol concentration, blood tests are more accurate. However, a blood draw can only happen if law enforcement officers get a warrant or get the person’s consent.
Consent Generally in California DUI Cases
The Fourth Amendment protects people from unreasonable searches and seizures by the government. This means that law enforcement must generally obtain a warrant before they can conduct searches of private property or persons. A blood draw, by literally going into a person’s body to extract evidence in a criminal case, is a search and seizure for Fourth Amendment purposes. Thus, any blood draw conducted by law enforcement must be “reasonable” or else the fruits of the search may be suppressed. In order to be “reasonable,” a search or seizure must be performed according to a validly-issued search warrant or an exception to the warrant requirement must apply.
The consent of the person to be searched has long been recognized as an exception that relieves law enforcement of their obligation to obtain a warrant for the person’s blood. Stated another way, a person can consent to a blood draw in a DUI investigation, and this consent means that law enforcement does not need to first get a warrant. So long as the person’s consent is knowing and voluntary, the blood draw and the test results that follow will all be admitted into evidence.
As mentioned, to be valid, generally speaking, consent must be freely and knowingly given. This means that a person’s decision to give consent cannot be unduly influenced by improper police behavior or pressure. Similarly, the person’s choice of whether to give consent must be a choice that is informed and not impacted by false legal information. If consent is not freely and voluntarily given, then officers may not be able to rely upon it to search or seize evidence, including a blood sample, unless they obtain a warrant.
Drivers Do Not Need to Consent to a Blood Draw
Obtaining a warrant can be a hassle, especially for an overworked or tired officer or deputy. As a result, that officer or deputy may attempt to get a driver’s consent for a blood draw rather than go through the process of obtaining a warrant. The officer may indicate, for example, that California’s implied consent laws mean that the driver must submit to a blood test whether the driver wants to or not. Or the officer may attempt to coerce consent by threatening the driver with additional criminal or administrative penalties for refusing to give their consent.
It is true that California does have an implied consent law, which requires drivers who have been arrested on suspicion of a DUI to submit to a breath or blood test. If a driver refuses, the officer must obtain a warrant, and the driver can be subject to additional penalties being imposed for the refusal. The constitutionality of this implied consent law, however, is in question thanks to a 2016 U.S. Supreme Court decision, Birchfield v. North Dakota. In that case, the Supreme Court of the United States held that a North Dakota law that criminalized a driver’s refusal to submit to warrantless blood tests incident to arrest was unconstitutional and violated the driver’s Fourth Amendment rights.
In light of Birchfield, California’s implied consent law as applied to warrantless blood draws is now of questionable constitutionality. The Court in Birchfield held that it was unconstitutional to create a separate crime to refuse a blood test, but California does not make it a separate crime. It only imposes additional penalties. The court has yet to extend the ruling to merely imposing additional penalties, rather than making it a separate crime to refuse. This means that, for now, drivers who are arrested for DUI should not feel compelled to consent to a blood draw.
Defenses in a DUI Blood Draw Case
If a driver consented to a blood draw, there may still be several ways to defend against the DUI charge. Just as is true with breathalyzers, there are procedures that law enforcement officers, or medical professionals at the direction of law enforcement officials, must follow when performing a blood draw. These are designed to ensure the blood sample is collected in a safe manner that minimizes the risk of contamination of the sample. If these procedures are not followed, a motion to suppress may keep the blood test results from being admissible – even if the driver consented to the test.
In a similar way, blood test results obtained by consent may be suppressed if officers obtained the driver’s consent through deceptive, unfair, or illegal actions. To be valid, consent must be freely and knowingly given by the driver. An obvious example of invalid consent would be “consent” obtained through physical force or the threat of physical force. Officers cannot threaten bodily harm to drivers and thereby obtain their consent to blood testing, nor can officers make false statements about their right to search without a warrant. Consent given by a driver after an arresting officer says they will be “locked up and the key thrown away” for refusing a blood test is not consent that is “freely” given.
Finally, drivers remain free to revoke any consent previously given up to the moment the blood draw is actually completed. If the driver clearly communicates that they are withdrawing their consent to a blood draw, officers are required to proceed as if consent had never been given and obtain a warrant for the blood draw. If they do not, the blood draw and results may be successfully suppressed.
Other defenses may be available, but some may require a careful and detailed analysis to know whether they are applicable in a given case. Drivers facing DUI charges should discuss their case with experienced legal counsel as soon as possible.