Forced Blood Draws

California's Implied Consent Law dictates that any driver who is lawfully arrested for DUI / DWI must take a chemical test in order to determine their blood alcohol content (BAC).

If the driver refuses to submit to a chemical test of the blood, breath or urine, police can take a blood sample by force - either by holding the driver down, or by threatening to do so. During a forced blood draw, trained medical personnel draw blood to be analyzed for a drunk driving court case.

The United States Supreme Court allowed forced blood draws in drunk driving cases in the landmark 1966 case of Schmerber v. California. The Court ruled that police can take a person's blood without a warrant for the purpose of chemical testing to determine intoxication, provided that the taking of the sample is done in a medically approved manner, after a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these three requirements are met, a forced blood draw does not violate the driver's Fourth Amendment right against unreasonable search and seizure.

The Court ruled that it is unreasonable to require a warrant to draw someone's blood in a DUI / DWI case because of the temporary nature of alcohol in the blood. However, many opponents believe that forced blood draws are an invasion of privacy and a violation of the right against self-incrimination.

In California, if police take the driver's blood by force it is recorded as a chemical test refusal. Refusals carry numerous consequences, including fines, jail time, and suspension of driving privileges. Therefore, a forced blood draw may result in both a conviction for DUI and added penalties. Sometimes police say that a DUI suspect refused even when he or she did not. These types of errors sometimes stem from issues that include misunderstandings resulting from language barriers, overreacting police officers, or drivers who fear needles.

An experienced defense attorney may submit a motion to the court to suppress the results of a forced blood draw from the evidence in a drunk driving trial. A suppression motion is a request typically made before the start of trial, where the court is asked to exclude evidence because it was not gathered in a constitutionally valid way.

If this protocol laid out by the Supreme Court for forced blood draws isn't followed, the DUI defendant may validly claim a violation of his or her Fourth Amendment right. Suppressed evidence cannot be considered by the judge or heard by the jury. According the legal principle of "fruit of the poisonous tree," any evidence gained as a result of the unconstitutional evidence must also be suppressed.

Suppressing forced blood draws in California drunk driving cases is a serious and necessary weapon in the fight for constitutional rights, and one of the few safeguards the law offers is where a person's rights have been violated. The knowledgeable DUI / DWI defense attorneys at The Kavinoky Law Firm will review the procedures used in a forced blood draw to determine whether a driver's rights have been violated. If the proper protocol was not followed, the defense lawyer will argue that the evidence should be suppressed.