Wednesday, May 8, 2013

Q & A: Do you have to take a blood test during a DUI stop?

A Supreme Court ruling says an officer needs a warrant

This is a scenario that happens more than you think: You’re driving home after an evening out with friends. You had a beer or two at a bar but nothing that you think would impair your driving, especially because you had a full meal at dinner. Suddenly, you look at your rearview mirror and see flashing red and blue lights.

You’re thinking police are after someone else, but when you look again in the rear view mirror you notice the police car is right behind you. Yes, it looks like they want you to stop. As you do so, you begin to panic, but there is nothing else you can do at this point except comply. After some questions and a field sobriety test, the officer says he wants you to take a blood test.

You’ve been as cooperative as you can until this point, but his request throws you for a loop. You wonder: “Do I have to take a blood test?”

Q: Can an officer force you to take a blood test?

A: The answer is no, not if you don’t want to. A police officer can’t force you to take a blood test and must obtain a warrant if he wants you to submit to one. If he has enough evidence, he can get the search warrant but he most likely can’t request a blood test against your wishes, according a recent Supreme Court ruling.

Q: Are there exceptions?
A: Yes, but limited ones, such as in an emergency.

Q: What constitutes an emergency that would make a warrant unnecessary?
A:The ruling said an emergency must be determined on a  case by case basis taking into account all the circumstances surrounding each case. An accident involving a potential death would likely fall in that category.

Q: Is a DUI stop considered an emergency?
No, the Supreme Court explicitly stated in its ruling a few weeks ago that most DUI stops is not considered an emergency and an officer must obtain a warrant to obtain a blood test if the motorist declines one.

Q: How hard is it for a police officer to obtain a warrant?
Fairly easy in most instances, even in the middle of the night. The Court said that, in most cases, prosecuting attorneys and judges are on call anytime to consider issuing warrants. As a matter of fact, at least 30 states provide electronic warrant applications, the Court noted.

Q: Does this mean I should refuse to take a blood test?
A: You should be aware that refusal to take a blood test can later be used as evidence against you. Motorists in many states can stand to lose their license if they refuse to take a blood test.

Q: What is the significance of the Supreme Court ruling?
A: The decision basically upholds a person’s Fourth Amendment right against unlawful searches, which the court said includes forced blood tests.

Q: Why did the Supreme Court take up this issue?
A: The Supreme Court ruling this week stemmed from a case in which a man, Tyler McNeely, was stopped by a police officer in Missouri for speeding and crossing the centerline. The man declined to take a breath test, then was taken to a nearby hospital where the officer directed a lab technician to take a blood sample while McNeely remained handcuffed. McNeely tested above the legal limit but successfully challenged the legality of the blood test based on his Fourth Amendment rights.

Q: How do police officers decide a whether a warrant is necessary?
A: Whether police officers have enough guidance to decide whether a warrant is necessary is a concern voiced by the state of Missouri. The Supreme Court, however, warned against taking a “broad categorical approach” to the Fourth Amendment. Basically, the Supreme Court was warning against issue broad rules that would jeopardize people Fourth Amendment rights.

We recommend that you consult with an attorney so you can be fully informed about your rights and responsibilities if you are pulled over for investigation of driving while intoxicated.

Photo credit: BiERLOS

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