A warrant may be required for blood draws, but is not required for breath tests.
If you are arrested on suspicion of driving under the influence (DUI) of drugs and/or alcohol in California, you will be asked to take a chemical test so that the police can determine your blood alcohol concentration (BAC). When you get a California driver’s license, you have impliedly consented to a post-arrest chemical test. This implied consent means that if you refuse to take a blood or breath test after an arrest for a DUI, then you may face additional penalties.
However, the implied consent law doesn’t mean that the police can force you to take a blood or breath test. As a DUI attorney in San Bernardino, CA can explain, the Fourth Amendment protects people from unreasonable searches and seizures by the government. This generally means that the police are required to obtain a warrant before conducting a search or seizure of a person or property. Does this mean that the police are required to get a warrant before administering a blood or breath test?
For breath tests, the answer is no. While the police cannot force you to take a breath test, they do not need a warrant before requesting that you take one. You can refuse to consent to the test, but as noted above, you will face consequences for refusing. The police can then seek a warrant to get a breath sample from you.
Blood tests are a bit different, however, because they are far more invasive. For a blood test, a needle will be inserted into your arm and blood will be withdrawn — which is both a search and a seizure. In most cases, the police can only perform a blood draw if (1) you consent to the procedure; or (2) they obtain a warrant. Importantly, consent must be given freely and knowingly. If the police are pressuring you in some way to consent, then your agreement may not be considered voluntary.
If you refuse to consent to a blood draw, then the police typically must obtain a warrant in order to perform the procedure. However, there are some exceptions to this rule. If you are unconscious or in a blackout state to the point that you cannot do a breath test, law enforcement may be able to conduct a warrantless blood draw. This falls under the exigent circumstances exception to the warrant requirement. It means that the police may be able to search or seize evidence without a warrant because of an emergency situation, such as danger to a person or the possibility that evidence will disappear if the police took the time to get a warrant.
The upshot? In most cases, if you refuse to submit to a breath or blood test, then the police will have to seek a warrant in order to conduct these tests. However, there are penalties that are associated with refusing to take a post-arrest test, such as the automatic suspension of your driver’s license. For this reason, it is often preferable to agree to take one of these tests, and then to contact a DUI attorney in San Bernardino, CA as soon as possible to start building a defense.
If you have been charged with a DUI, the Chambers Law Firm can help. Contact us today at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation.
