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Forced Blood Draw

07th June 2006
By Darren Kavinoky in Legal
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Forced Blood Draw

When a person has been lawfully arrested for a DUI, the Implied Consent provision of the California Vehicle Code mandates that they take a chemical test in order to determine their blood alcohol content (BAC). Although a person may refuse to submit to a chemical test, law enforcement is authorized to take a "forced blood draw." A forced blood draw can be either the incapacitation of a person by law enforcement officers (physically holding him down) or the threat of doing so, while trained medical personnel draw the blood for use in the later prosecution for DUI.

The United States Supreme Court decided the forced blood draw issue in the seminal case of Schmerber v. California, in 1966. This case held that it is permissible for the police to take a warrantless taking of a person's blood for the purpose of chemical testing to determine intoxication, provided that the taking of the sample is done in a medically approved manner, incident to a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these guidelines are followed, then a forced blood draw does not violate the 4th Amendment right against unreasonable search and seizure.

Due to the temporary nature of alcohol in the blood and the relatively short time it takes for it to dissipate (several hours), courts have held it to be unreasonable to mandate a warrant to invade the person's body with a needle in order to extract their blood. The opposing view holds that a forced blood draw is an invasion of privacy, a violation of the right against self-incrimination, and an act of violence.

In California, a forced blood draw is considered a "refusal." A refusal has many repercussions, including fines, jail time, and suspension of driving privileges. Therefore, a forced blood draw may result in both a conviction for DUI plus added penalties. Some police agencies have a tendency to state that the DUI suspect "refused" even when they did not. Some common issues include misunderstandings resulting from language barriers, over-reactive police officers, or the fear of needles (where a breath test is not available).

In order to withhold the forced blood draw results, a suppression motion may be instituted. A suppression motion is a motion usually made before the start of trial, where the court is asked to exclude evidence because it was not gathered in a constitutionally valid way. As mentioned previously in this article, the Supreme Court stated that the proper protocol to be followed in a forced blood draw. If these protocols are not followed, then the DUI defendant may validly claim a violation of his or her 4th Amendment right. Thus, it is not only proper, but mandated, to suppress this evidence. Suppressed evidence may not be considered by the judge or heard by the jury. According the legal principle of "fruit of the poisonous tree," any evidence gained as a result of the unconstitutional evidence must also be suppressed. This is a serious and necessary weapon in the fight for constitutional rights and one of the few safeguards the law offers where a person's rights have been violated.

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About the Author
Occupation: Lawyer
Darren Kavinoky is a Los Angeles-based criminal defense lawyer who practices throughout California. He is the Managing Shareholder of The Kavinoky Law Firm, an 11-lawyer criminal defense firm that handles criminal defense matters exclusively. Darren has provided legal commentary on Larry King Live, the Today Show, Celebrity Justice and many other TV and radio programs. He is a nationally-renowned lecturer and author who delights in sharing his experience with others. More information about Darren and The Kavinoky Law Firm can be found at or and
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