Forced Blood Draws – A Change Coming to DUI Prosecutions?

A very important case is before the US Supreme Court (Missouri v. McNeely), dealing with the legality of forced blood draws in the context of DUI prosecutions.

A brief primer: when issued a license in California, you give implied consent to submit either a breath or blood sample upon arrest for the suspicion of DUI. Pursuant to Vehicle Code 13353, refusal to submit to one of these chemical tests may result in a license suspension by the Department of Motor Vehicles. Needless to say, the issue of forced blood collection is a major concern with far reaching implications criminal defense attorneys defending DUI cases.

In San Mateo County, many judges focus on the manner in which the blood is collected in determining whether or not such evidence is admissible. Relying on the groundbreaking 1966 US Supreme Court decision in Schmerber v. California, the “exigent circumstances” of the body processing alcohol from the blood create an exception to the warrant requirement for the “seizure” of a defendant’s blood. As the US Supreme Court decides the McNeely case, it will surely reexamine the facts and rationale in Schmerber.

But what if you don’t want to, or are unable to provide such a sample? Can the police summon a phlebotomist to collect your blood without a warrant and without your consent? Can that evidence then be used against you? Depending on what happens in McNeely, we could see big changes in California DUI prosecutions. If you are fighting a San Mateo County DUI involving a forced blood draw, please contact me to discuss your legal options.

Leave a Reply