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Is Law Enforcement Required to Obtain a Warrant to Draw Blood When a Person is Stopped for DUI?

Warrant to Draw Blood when Stopped for DUI 

A recent U.S. Supreme Court opinion considered the Constitution’s requirement for a search warrant when stopping someone for DUI and taking a blood sample. In Missouri v. Neely, 133 S. Ct. 1552 (2013), the Defendant was arrested for DUI and refused a Breathalyzer test. The Highway Patrolman took the Defendant to a hospital for blood testing. The Defendant refused a blood test but the officer directed a lab technician to take the sample. The officer did not attempt to obtain a search warrant before the sample was taken believing that he didn’t need one. The Defendant asked the trial court to throw out the results of the blood sample since the Highway Patrolman did not obtain a warrant. The prosecution relied on an exception to the search warrant requirement-exigent circumstances. Exigent circumstances are defined as an unusual and time-sensitive circumstance that justifies conduct that might not be permissible or lawful in other circumstances. Some examples include acting without a warrant due to mortal danger to a young child or protecting evidence or property from imminent destruction. The State argued that with the passage of time, there is a natural metabolization of alcohol in the bloodstream thereby acting as a destruction of evidence

The Supreme Court stated that there are legitimate interests of law enforcement in protecting the traveling public from drunk drivers. However, adopting the State’s exigent circumstance approach ignored current and technological developments in warrant procedures. It also diminished the incentives for jurisdictions to pursue aggressive approaches to obtaining a warrant that also preserves the protection guaranteed by the Constitution's warrant requirement. In short, the Supreme Court refused to adopt a blanket approach to the issue but stopped short of banning all warrantless blood samples.

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In many Texas cities there are “No Refusal” weekends or holidays. A judge is available to sign the search warrant for blood samples. This avoids the Constitutional problems in obtaining blood samples. However, the best advice is NEVER agree to the breathalyzer or blood samples. Make them get a warrant. Enough time may pass so that the body metabolizes the alcohol so that you are under the legal limit. 

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