Ask an Arizona DUI Attorney – Do the Police Need a Warrant to Get My Blood? #DUIAttorney

Brian StrongBrian Strong, Criminal Defense Attorney in Arizona, DUI & Traffic Defense AttorneyLeave a Comment

As an Arizona DUI attorney, I routinely represent clients whose blood has been taken without their permission. In some cases, the police officers have obtained a telephonic search warrant. In other cases, the officers simply hold my client down and take blood without a warrant.

The Fourth Amendment to the Constitution provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Unfortunately, the general warrant requirement is subject to emergency exceptions. In DUI cases, officers have routinely claimed that the natural dissipation of alcohol in the blood makes a warrantless search reasonable under the Fourth Amendment.

Court approval of warrantless blood searches in DUI cases dates back almost fifty years. In 1966, the United States Supreme Court held that a warrantless blood search for a DUI suspect did not violate the Fourth Amendment because 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. See, Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (emphasis added). Back in the 1960s, an officer needed several hours to obtain a search warrant for a blood draw. Given the metabolization of alcohol in the bloodstream, officers did not want their evidence to completely disappear before a warrant could be obtained.

Even though the Court in Schmerber focused on the unique circumstances of that particular case, over the past five decades, many police officers have functioned under the false assumption that they never needed a warrant to obtain blood for a suspected DUI driver. Other police departments, however, in deference to citizens’ constitutional rights, have utilized modern technology and modified the way search warrants are obtained. Telephonic search warrants are now common, and an officer can use pre-printed forms and an on-call judge to obtain a warrant in 30 minutes or less.

In a recent decision, the United States Supreme Court reaffirmed that officers do not have blanket permission to engage in nonconsensual blood draws without a warrant. See, Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (April 17, 2013) Click Here to Read. In rejecting the government’s request for a bright-line (no warrants are ever needed in a DUI case) rule, the Supreme Court noted that:

  1. The “invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.” 133 S.Ct at 1558 (citations omitted);
  2. A person’s blood-alcohol content “naturally dissipates over time in a gradual and relatively predictable manner.” 133 S.Ct. at 1561; and
  3. “[S]ome delay between the time of the arrest or accident and the time of the test is inevitable.” 133 S.Ct. at 1561.

Given these factors, if obtaining a telephonic search warrant does not “significantly increase” that routine delay, then the Fourth Amendment mandates that a warrant be obtained.

If you have been arrested for DUI and the officers obtained your blood (with or without a warrant), you should always speak with an experience Arizona DUI attorney to make sure your constitutional rights prohibiting unlawful searches have not been violated.

Attorney Profile: Brian D. Strong, Arizona DUI Attorney

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