Can the police take your blood in a DUI?
There are some situations where the police can take your blood without a warrant. Under the US Supreme Court’s ruling in the McNeely case, the court made clear that the taking of blood is actually a search of the body, which requires either (a) Consent; or (b) A warrant, or (c) Any of the more rare exceptions to a warrant situations.
Can the police take your blood in a DUI and get a warrant?
In Orange County, the judges and prosecutors have conspired, I mean got together, to make a policy where judges rotate being on call 24 hours per day to be available to issue warrants for blood tests.
Under California law, a blood sample must be drawn within three hours of driving in order to be admissible and used in a DUI case to prove blood alcohol.
Can the police take your blood in a DUI instead of breath?
Under the Ingersoll decision, the police are supposed to give you the choice between a breath test, and a blood test. However, if a breath machine is not available, they can select a blood test for you. If they suspect you are under the influence of drugs, you can also be limited to a urine test or a blood test (and sometimes the police require both).
So, can the police take your blood in a DUI?
The answer is a qualified yes. One of the consequences of DUI attorneys advertising on radio and television, reminding people that field sobriety tests are optional, and not required or mandatory, and that field breathalyzer tests are completely voluntary, is that many people end up refusing all tests, and then being charged with a DUI refusal.
When it comes to a breath or blood test that is to be used as evidence, one of the conditions of your license is that you must submit to a test, or lose your license for one year. You can also be subjected to additional punishments in court as well.
What do you recommend?
We recommend refusing all DUI field tests, and to ask for a breath test at the station. Hopefully that will give you enough time for your blood alcohol level to drop from the time of driving to the time of the test.
Contact us today to get information for your DUI case. We can help.