For years, the question of whether or not police can draw your blood without consent has been debated in legal discussions. Ultimately, the United States Supreme Court curbed the debate when they clarified the Constitutional limits for officers who want to measure the blood-alcohol levels of a suspect after a drunk driving arrest.

The court’s ruling came after two separate appeals from men who had been arrested for driving under the influence (DUI) and were threatened with penalties if they did not submit to a blood test. Although the men refused to be tested, their blood was taken without their consent. Because of their initial refusal to provide a BAC measurement, they were reprimanded with additional charges from prosecutors.

The men argued that penalizing them for refusing testing violated their <a href=4thamendmentrights>4th Amendment rights</a> (the right that protects citizens against unreasonable searches by police). Although the judges did not fully concur with their arguments, they did agree that blood testing is “significantly more intrusive” on a person’s privacy than a breath test, and decided that law enforcement must first obtain a lawful warrant before conducting such a blood test.

While the ruling ultimately established that police officers need a warrant in order to test the blood of a person who gets pulled over for driving under the influence, it also reinforced that police do not need a warrant to conduct a breath test using a breathalyzer under similar circumstances.

According to Justice Samuel Alito, “because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.”

While the police cannot compel a blood test, they can offer a suspect the choice between a blood test and a formal breath test, and if the accused selects the blood test, then they have consented to that type of search and have a more restricted ability to fight the charges on 4th Amendment grounds. Many states, including Nebraska, require as a condition of holding a driver’s license that a person consent to breath testing whenever requested by police. While a driver can legally refuse such testing to avoid criminal charges, they may still lose driving privileges as they are not a protected right.

Nonetheless, there are many procedural rules that the police must follow in order to arrest someone for a DUI/DWI. There are additional 4th Amendment considerations that can invalidate the prosecution’s case against a suspect, even if the person consented to a breath or blood test at the time of arrest. The circumstances of the stop must meet certain legal thresholds, and there are standards surrounding the gathering and protection of evidence that can be violated during the course of an arrest and subsequent prosecution.

It is the duty of the attorney to examine the entire set of facts surrounding an arrest to identify steps during which the police or prosecution may have made mistakes that would lead to an unfair conviction. Experienced DUI lawyers will carefully probe all pieces of evidence to find potential missteps that violate the constitutional rights of the defendant.

Do you have more questions about law enforcement blood tests? Has your blood been tested by police without your consent? Contact our Lincoln and Omaha DUI attorneys to get legal assistance today.

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