DUI & Traffic

Do the Police Need a Warrant to Get My Blood? #ArizonaDUIAttorney

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). 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. Some 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 criminal defense attorney to make sure your constitutional rights prohibiting unlawful searches have not been violated. Call us today, we can help you with your Arizona DUI defense.
Attorney Profile: Brian D. Strong, DUI Attorney

Criminal Defense Lawyer Mesa Arizona | Did You Know You Should Move Over?

Over the past decade, almost every state in the Union has enacted a “Move Over” law. These laws seek to reduce injuries to police officers and emergency personnel who are issuing citations or providing medical care on the side of the road. If you do not appreciate the frequent danger these men and women encounter during a simple traffic stop, then type “move over law” into the YouTube search bar. You will be amazed at the things you see.

“Move Over” laws require drivers to change lanes away from a parked emergency/police vehicle that has its lights flashing. If traffic flow prevents a safe lane change, then the driver must slow down sufficiently to permit safe travel alongside the vehicle. Arizona’s “Move Over” law, Arizona Revised Statutes §28-775(E) went into effect in 2005.

If you are unfamiliar with the concept of a “Move Over” law, I highly recommend you visit www.moveoveramerica.com. This website not only explains the law but also contains an interactive map of the entire United States detailing when each state’s law went into effect and the potential consequences for violating that law. While most states (like Arizona) consider the “Move Over” statute to be civil traffic in nature, meaning only a fine or traffic school, there are a few states that impose jail time and mandatory license suspension for violating this law – a handy bit of information to possess before embarking on summer vacation.

In addition to requiring drivers to move over for all parked emergency vehicles, many states require that for a tow truck that has its yellow lights flashing. In an extension of this concept, Senate Bill 1138 currently before the Arizona legislature would require drivers to move over for any vehicle – not just emergency vehicles – that is parked at the side of the road and displaying flashing lights, such as a driver who pulled over to change a flat tire.

If you need advice or assistance with traffic violations please call me at (480) 833-2341.

Attorney Profile: Brian D. Strong, Criminal Defense Attorney