Can police force DUI suspect to give blood sample?

Atty. Emmanuel Samonte Tipon 

A motorist was stopped by a police officer for speeding and crossing the centerline. The officer asked him to take a breath test to measure his blood alcohol concentration (BAC) but he refused. The police arrested him and took him to a hospital for blood testing. He refused to consent to the blood test. The officer ordered a lab technician to take a sample of the motorist’s blood, which was above the legal limit. The motorist was charged with driving while intoxicated (DWI). He moved to suppress the blood test result on the ground that the taking of his blood sample without a search warrant violated his Fourth Amendment right.

The trial court ordered the blood test result suppressed. The state supreme court affirmed, citing Schmerber v. California, 384 U.S. 757, which held that a DWI suspect’s warrantless blood test is valid where the officer “might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.’” The state court said that this case was a routine DWI investigation and that except for the natural dissipation of blood alcohol, there was no factor suggesting an emergency, and therefore the warrantless test without the motorist’s consent violated his right to be free from unreasonable searches of his person.

EXCEPTIONS TO WARRANTLESS BLOOD TEST

The U.S. Supreme Court affirmed, holding that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case in order to justify conducting a blood test without a warrant. A warrantless search of the person is reasonable only if it falls within a recognized exception, such as when the “exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” The court said that it looks to the totality of the circumstances in determining whether an exigency exists.

The court rejected the State’s argument that exigent circumstances necessarily exist when an officer has probable cause to believe that a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent.  In rejecting this argument for a per se rule, the court indicated that while a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from a careful case-by-case assessment of exigency. When an officer can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

The court explained that blood testing is different from other cases where the evidence may be destroyed, such as where a suspect has control over easily disposable evidence, since BAC evidence naturally dissipates in a gradual and relatively predictable manner. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, said the court, but it does not do so categorically. Current conditions allow more expeditious processing of warrant applications especially in drunk driving cases where evidence supporting probable cause is simple.

The court emphasized that motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. Although a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, the Court said it has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.  The court concluded that the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com; www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)