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Drawing Blood & Consent

It is not unusual to come upon a case where the DUI suspect refused to take a blood alcohol test and blood was drawn anyway. In these instances, objections are made to keep the results of these blood tests from being entered as evidence at trial on 4th Amendment search and seizure grounds, due process under 5th Amendment and 5th Amendment right against self-incrimination.


Some courts have denied the 5th Amendment claim against self-incrimination on the grounds that evidence in a DUI blood sample is genuine and scientifically testable, and not communicative or testimonial, which is what the 5th Amendment specifically protects.


Courts generally do not deny that taking of blood from a suspect falls squarely within the 4th Amendment ambit of search and seizure, but they have been reluctant to give free reign to the police in this area. The 4th Amendment requires the means and procedures employed in taking a blood sample from a DUI suspect are reasonable.


As the procedure does not jeopardize the DUI suspect’s health, it is generally considered reasonable, and thus legally permissible when a hospital staff draws the DUI suspect’s blood. The key issue is whether the defendant is under arrest at the time the blood was drawn. The federal courts have held that if the DUI defendant is under arrest, the forcing of blood draw is permissible, though the rationale is not perfectly clear. States have struggled with the issue and differ in their approach.


Some courts have required police to obtain a search warrant before drawing the DUI defendant’s blood. The government has successfully argued in certain instances that the fleeting nature of blood alcohol evidence creates expedient circumstances justifying the removal of blood without a search warrant. Factors to be considered in expedient circumstances include the short-lived nature of alcohol in the bloodstream, the passage of time and the hospitalized defendant’s potential unavailability.


The drawing of blood is held unacceptable in cases when the lapse of time between the DUI arrest and ordering the blood drawn is minimal, the police do not take steps to inquire as to the length of the DUI defendant’s medical care or in cases when the DUI defendant would be released and become available for a blood draw. In fact the compulsive blood draw is usually held invalid if other tests such as a breathalyzer test are available and have been or could have been performed.


Though force seems extreme and unconstitutional, courts have apparently had no argument with the limit to which law enforcement has gone to force a DUI arrestee to provide a sample. In order to draw blood, courts have allowed police to place pillows over the heads of kicking and fighting DUI defendants; use stun guns after five to six officers held the DUI defendant down; restrain around the DUI defendant’s neck; and use sticks to subdue the DUI defendant.

The reasonableness of these procedures apparently relies on the nature of the DUI defendant who takes the sample and where the DUI defendant is located when the sample is taken. Although courts have had problems with some of the methods police have taken, courts have held that when medical personnel take the sample, the reasonableness requirement is met.


It is important to note that even when medical personnel take the sample, it is not an absolute guarantee that the sample will be admissible. For example, in one case the DUI defendant consented to the test, but had to be restrained by handcuffing him to a hospital bed. He began fighting and was held down by six people while the technician, after several unsuccessful attempts at locating a vein, finally obtained a sample. The test was excluded. The court said that regardless of the blood withdrawal method being done in a medically acceptable manner and notwithstanding the fact that the DUI defendant’s violent resistance prompted the extreme measures taken, the method used offended due process rights. The sample was inadmissible as evidence.


In another recorded case, the DUI defendant became uncooperative in the emergency room of a hospital. He had to be held down in order for the nurse to take the blood sample. The court held that before a compelled blood sample could be taken the state must prove: 1) there was probable cause to believe the accused committed either aggravated assault or vehicular homicide while under the influence, 2) urgent circumstances exist to forego the warrant requirement, 3) the test selected by the officers was reasonable and competent for determining blood-alcohol content and 4) the test must be performed in a reasonable manner.


Some states have passed statutes that have ostensibly eliminated even the probable cause requirements. A Maine statute that mandates a blood test in any accident where there is a death involved was held constitutional. However, a similar statute that allowed the seizure of blood where there was probable cause to believe there had been serious injuries or death was held unconstitutional insofar as it violated the state constitutional provision prohibiting impermissible search and seizures.


The New Jersey Supreme Court has held that the police may not use unreasonable force in obtaining a blood sample. The implied consent statute provides that suspected DUI drivers are deemed to have given consent to the taking of breath samples to determine the alcohol content of their blood. However, some statutes prohibit police from using force and states that no chemical test or specimen "may be made or taken forcibly and against physical resistance" from the DUI defendant. If a suspected DUI driver refuses to submit, his driving privileges may be revoked.


Although the implied consent statute pertains solely to breath tests for DUI suspects, the courts have cited the statute to lay the foundation for other rulings. For example, the Court set forth a balancing test to determine whether the use of force is reasonable. The test balances three points; 1) the severity of the offense, 2) whether the suspect posed an immediate threat to the safety of others, and 3) whether the suspect was actively resisting arrest against the State's interest in prosecuting the offense.

The breath test will be invalid if interference is detected during a test. If a breath test document is produced where interference is specifically noted, the breath test will not be admissible in court. The subject will be required to repeat the test. If a DUI subject’s breath registers the presence of interference on two or more successive breaths, they shall be considered incapable of providing a valid breath sample. At this point, the only remaining option would be a blood draw.

If a DUI subject is wearing jewelry or ornamentation pierced through their tongue, lips, cheek or other soft tissues in the oral cavity, they will be required to remove this prior to conducting the breath test. If the subject declines, they will be deemed to have a physical limitation rendering them incapable of providing a valid breath sample and will be required to provide a blood sample under the implied consent statutes.

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