You may already know that police typically cannot enter your home, conduct a search of your private property, or seize anything that belongs to you unless they have gone through the proper channels to demonstrate probable cause to do so 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.
Individuals often go along with blood and breath tests because they fear the repercussions of refusing to undergo such examinations, which may include penalties such as immediate driver’s license revocation or the issuance of DUI charges. On the flip side, there have been documented cases of police forcibly taking blood samples from intoxicated people without their consent.
These scenarios beg the question, “Do police need a warrant to take and test my blood?”
The Legality of Forcible Blood Testing
In 2013, the Supreme Court ruled that although alcohol dissipates from the blood over time, it 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.
While a police officer may take a breath test without a warrant, they must have a warrant to take a DUI blood test.
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. In order to support a warrantless blood draw based on a lack of time to obtain a warrant, the officer must establish a strong reason as to why he or she cannot obtain a warrant.
Protecting Your Right to Privacy
Your blood is also a matter of privacy. A breath test shows only the information that is relevant to law enforcement at the time it is taken (the blood alcohol level).
On the other hand, blood carries an immense amount of information that can be analyzed and even stored. Therefore, obtaining blood is “significantly more intrusive” on privacy interests than a simple breath test. For these reasons, a warrant is typically required for blood tests.
Drawing Blood Without a Warrant May Violate Your Fourth Amendment Rights
The Fourth Amendment of 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 be issued 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 probable cause
- The “automobile exception”
- Items in plain view
However, note that there is no per-se 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. That said, the Supreme Court has held that forcing someone to take a blood test without a warrant or special circumstances (called “exigent” circumstances) is unconstitutional.
The Court stated that drawing blood is a type of search under the Fourth Amendment and should be treated like any other search would be. This means that law enforcement may search a person who has been arrested without a warrant if it supports “legitimate government interests” without intruding on individual privacy. Even under this standard, blood tests were held to be searches that require a warrant.
Alternative Ways Cops Obtain Blood Testing Without Consent
As discussed above, law enforcement can obtain a blood test without your verbal consent by obtaining a warrant signed by a judge. In most circumstances, the procedure to do so is as follows:
- An officer stops the driver of a vehicle and subsequently arrests the driver for suspicion of DUI.
- The officer then requests a urine, breath, or blood sample from the suspect.
- With regard to an officer’s request for a blood test, if the driver refuses, the officer will draft a probable cause affidavit and a request for a warrant and present it to a judge.
- While the amount of time that it takes to obtain a signed warrant can vary, if the judge ultimately determines that the officer has probable cause, the warrant for a blood test will be granted.
- The blood sample will then be taken by a nurse or phlebotomist.
Additionally, pursuant to Nebraska Revised Statute § 60-6,210, if a driver suspected of DUI is taken to a hospital and has blood drawn for the purposes of medical treatment, the results of that blood draw are admissible in a criminal case against the driver.
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Protecting Yourself if Blood Is Tested Without Consent
Under Nebraska Revised Statute § 60-6,201(3), only a licensed doctor, licensed physician assistant, medical technologist, or registered nurse may take a blood sample to test for alcohol, the presence of a controlled substance, or other drugs when working under the direction of a police officer with a warrant.
For the protection of your privacy and to eliminate tampering, police are required to keep records regarding the “chain of custody” whenever they seize or move evidence, and only well-maintained equipment kept in strict sterile and hygienic conditions may be used to take blood. That blood must be stored in order to maintain the integrity of the evidence.
It is imperative to know that under Nebraska Revised Statute § 60-6.199, a driver suspected of DUI is allowed to have a chemical test or tests conducted independently and at their own expense. If an officer fails to allow the driver to obtain their own test, the test administered by law enforcement shall not be used as evidence.
We Know Your Rights & We Can Fight for Your Best Outcome in Court
Our DUI lawyers at Berry Law 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.
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. When needed, our team of experienced criminal defense attorneys can assist you in fighting your charges. Contact us today to speak to a DUI attorney.
