The Legality of Forcible Blood Testing
You may already know that police typically cannot enter your home, conduct a search of your private property, and/or seize anything that belongs to you unless they have gone through the proper channels to demonstrate cause and obtain a warrant.
When pulled over during a traffic stop or arrested for unlawful substance abuse or drunk driving, many people are unaware that their Fourth Amendment rights extend to chemical testing. Oftentimes, individuals go along with blood and breath tests because they fear the repercussions of refusing to undergo such examinations, which includes penalties such as immediate driver’s license suspension and issuance of DUIcharges. There have also been documented cases of police forcibly taking blood samples from intoxicated persons without their consent.
Both scenarios beg the question, “Do police need a warrant to take and test my blood?”
The Supreme Court ruled in 2013 that the fact that alcohol can leave blood over a certain period of time does not give law enforcement the right to draw blood without a warrant. In 2016, they declared the laws that made it illegal to refuse a blood draw after a DUI arrest unconstitutional. A police officer may take a breath test without a warrant; however, if you do not consent to a blood test, then a police officer must get a warrant. The only way an officer may take a blood test without a warrant is if they argue that there is not sufficient time to pursue one. Rarely ever is there not enough time, though, and they must establish a strong argument as to why they believed this. Your blood is also a matter of privacy. When discussing blood vs. breath, your blood carries an immense amount of information that can be analyzed and even stored. A breath tests shows only the information that is relevant to law enforcement at the time it is taken (the blood alcohol level), while blood tests contain more information than can be considered necessary for charging a DUI. The Court also ruled that the obtaining of blood is “significantly more intrusive” on privacy than a simple breath test. For these reasons, a warrant is required for blood tests.
Drawing Blood Without a Warrant May Violate Your Fourth Amendment Rights
The Fourth Amendment to the United States Constitution affirms the following:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Though the Fourth Amendment forbids most warrantless searches, there are a few circumstances in which police may search or seize your person or property without obtaining a warrant. Such exceptions may include searches involving:
- Abandoned property
- Arrest based on reasonable suspicion
- The so called “automobile exception”
- Items sitting in plain view
There is no exception to the Fourth Amendment that would allow members of law enforcement to force you to submit to a blood test. Police and other members of law enforcement may cite “implied consent,” and argue that motorists agree to submit to chemical testing by virtue of driving. Forcing someone to take a blood test is not merited without a warrant, and this has been held up by the Supreme Court. The court stated that drawing blood is a type of search under the fourth amendment and should be treated in the way any other search would be treated. This means that they may search a person who has been arrested without a warrant if it supports “legitimate government interests” without intruding on individual privacy, and blood tests were held to be searches which require a warrant.
We Know Your Rights & We Can Fight for Your Best Outcome in Court
At Berry Law Firm, we believe everyone is innocent until proven guilty. However, we have often seen the reverse philosophy play out in court to the detriment of the accused. Unfortunately, many members of law enforcement rush to issue criminal charges and violate suspects’ rights in their haste to administer justice. In this case, they may use the “implied consent” to prosecute you, but the attorneys at Berry Law know this is a violation of your rights and can help defend you against these charges.
We are equipped to help those accused of criminal charges fight back when law enforcement does not follow proper protocol and acts without obtaining necessary warrants. Allow our team of experienced criminal defense attorneys assist you in fighting your charges.
Schedule your free consultationwith a Nebraska criminal defense lawyer today.