DUI Blood Test: Do They Need A Warrant?

Law Offices of EJ Stopyro Orange County DUILawyer
DUI Attorneys in Orange County

It’s Friday night. You meet some friends after work for some food, drinks and relaxation. At the end of the night you drive home. But all the sudden, traffic slows to a crawl. Wouldn’t you know it, the Orange County Sheriff’s Department is running a DUI checkpoint. Oh oh! You run a count in your head of how many drinks you had and when you had them. “I should be ok” you think. “I’m sure I’m not driving drunk” you think.

The cop has you roll your window down and when he smells the alcohol on your breath he asks you to do some field sobriety tests at the side of the road. You are sure you passed with flying colors—so why is the cop putting handcuffs on you and arresting you for DUI. He asks which test you want to take; blood or breath? “Get a warrant” you say. “And I want to talk to my DUIdefense lawyer”, you add. “Surely you cannot conduct a highly invasive search of my blood or breath without a warrant”, you say. But you are wrong. The United States Supreme Court ruled long ago that the police CAN search your blood WITHOUT A WARRANT!

In the case of Schmerber v. California (1966) 384 U.S. 757, the Supreme Court made an EXCEPTION to the warrant requirement in DUI cases. The Court held that because the blood evidence of the crime of DUI is so fleeting and because the time to preserve the evidence (by extracting it from you) is so short, that the police CAN take your blood even against your consent and even without a warrant. However, the Court also held that if the police do take your blood without a warrant, the burden is on the government to show that the test was performed in a reasonable manner, that the blood was taken by medical personnel in a hospital environment according to accepted medical practices.

The Schmerber case is the foundation of the doctrine of IMPLIED CONSENT, which is codified in the California Vehicle Code Section 23612. This law states that anyone who drives on the roadway has given their “implied consent” to a breath or blood test if arrested for DUI by a police officer. However, if you are arrested for a DUI and your blood is taken as evidence of drunk driving, with or without your consent, your DUI attorney in Orange County can challenge this evidence. The District Attorney still must show that the test was performed in a reasonable manner by medical personnel according to accepted medical practices. If the DA fails to make this showing, either at trial or at a suppression motion before trial, then the blood evidence cannot be used against you. This often leads to a complete dismissal of the case against you.

For learn more about DUI defense call the Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange County DUI attorney or go to our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

Orange County DUILawyer
DUI Attorneys in Orange County