The Need of Search Warrants for Blood Samples

It might seem as if the laws are stacked against drivers who might possibly be convicted with a DUI, but there's still hope for them thanks to the 4^th Amendment and its ban on unreasonable searches, especially in regards to blood tests for the purpose of obtaining a BAC reading.

Recently, the Supreme Court ruled against a prosecution's appeal to exempt the requirement of a search warrant in the case of an arresting officer and a DUI driver who would not consent to a blood test. While prosecution argued that the forcible nature of the blood test was necessary in getting dissipating evidence from the offender, justices were steadfast on the law that requires officers to obtain a warrant. And the fact that getting one by phone or computer was a viable option and can be done within a matter of minutes supported the case of the defense even more.

Advantages for DUI Drivers

The Fourth Amendment guards against unreasonable searches and seizures that would invade an individual's privacy and a search warrant along with probable cause is the only way to get around this ban. DUI drivers can utilize their rights according to this amendment when a blood test is being requested of them. If the police officer does not present a search warrant sanctioned by a judge, then they are not required to comply with having their blood drawn.

In addition, this also gives DUI drivers an advantage over any incriminating evidence that might be gathered against them. Even if somehow law enforcement was able to obtain blood sample from the offender and their blood alcohol levels are exceedingly above the limit, this evidence is inadmissible in a court hearing if a search warrant was never issued. This could also result in the case being dismissed.

If the arresting officer follows through with applying for a search warrant, the process can take several minutes or even hours. This allotted delay will give the driver more time for their BAL to dissipate which may or may not put them within the legal BAC limit.

Case by Case Contingency

While this can greatly affect the outcome of several cases in favor of the defense, not all DUI drivers will be able to benefit from the Fourth Amendment. Because according to the Supreme Court, warrantless blood draws can still be a possibility but only on a case by case basis and will rely hugely on the "totality of circumstances". So for now, the privacy of your blood is safe until a search warrant is present; unless of course you just happen to be one of the exceptions to the rule.

Have more questions about your DUI case? Call Attorney Jonathan Blecher, P.A. to discuss your situation during a free case evaluation. Attorney Blecher has been defending DUI cases in Miami for over three decades and has the knowledge you need on your side.

Forced Blood Tests in DUI Cases

Missouri v. McNeely was decided earlier this year. The Supreme Court of the United States affirmed the judgment of the Missouri Supreme Court holding, that in a DUI investigation, "the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant."

What that means for the average person is that a police officer cannot hold you down while he sticks a needle into your arm to take your blood by force, at least not without a warrant. If the Court ruled differently officers might could have begun routinely taking blood by force if the person refused to submit to a breath test.

The attorney who represented McNeely, Steven Shapiro, offered his opinion:
 "We know from experience that drunk-driving laws can be strictly enforced without abandoning constitutional rights. Today's decision appropriately recognizes what half the states have already demonstrated – that maintaining highway safety does not require sacrificing personal privacy."

I came across a video posted by Justin McShane, a DUI attorney in Harrisburg, Pennsylvania, showing what happens during weekend DUI saturation event when the arresting officer wanted blood.

In Florida, however, police officers cannot get a warrant to take blood after a person suspected of a misdemeanor DUI refuses to submit to breath or urine testing. What does result is the following:

• A "refusal" can be used against the person at trial as consciousness of guilt
• A second refusal can is an additional criminal offense (up to 12 months in jail)
• A one year administrative suspension of driving privileges, even if they are found not guilty at trial. Eighteen months for a second refusal.

 If your blood was drawn without your consent after a DUI arrest, then please contact my office to discuss your case.