I have an option during a **** test to choose a urine test, but if I don’t have to go, can they force me physically to take a blood test?

I cooperated to the fullest during my arrest and chose the urine test. After 15 min.s I still didn’t have to go, so they waited another 15 min.s. Seemingly frustrated they carried my to the hospital where I told everyone I was willing to take a urine test but not blood. Can they use force to change mind like that?

Asked on May 25, 2009 under Criminal Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Actually, depending on the circumstances they can.  A provision of the California Vehicle Code known as "implied consent" mandates that drivers who are lawfully arrested for a DUI / DWI must take a chemical test in order to determine their blood alcohol content (BAC).

When drivers refuse to submit to chemical tests, police are authorized to take blood samples by force – either by holding the driver down, or by threatening to do so.  During a forced blood draw, trained medical personnel actually draw the blood for use in the later prosecution for drunk-driving.

A  warrantless taking of an individual’s blood for the purpose of chemical testing to determine intoxication, is legal as long as the taking of the sample is done in a medically approved manner, after 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 Fourth Amendment right against unreasonable search and seizure.

In California, a forced blood draw is considered a “refusal.”  A refusal has many repercussions, including additional fines, jail time, and suspension of driving privileges.  Some police agencies have a tendency to state that a DUI suspect refused even when he or she did not.  Some common issues include misunderstandings resulting from language barriers, overreacting police officers, or drivers who fear needles.

As mentioned previously, the proper protocol must be followed in a forced blood draw.  If this protocol is not followed, then the DUI defendant may validly claim a violation of his or her Fourth Amendment right.  Thus, it is not only proper, but mandated, to suppress this evidence.  

Your case presents a twist in that you were willing to take a chemical test, a urine test, but could not do so at the time.  You also use the phrase "change mind like that".  If you mean they intimidated you into agreeing to switch from a urine to blood test that too is a factor to be considered.  Frankly, this is a very specialized and complicated area of the law; an experienced DUI/DWI defense attorney can review the specific facts of your case to determine whether or not your rights have been violated.


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